THE WORKS

OF

THE RIGHT HONOURABLE

EDMUND BURKE

IN TWELVE VOLUMES

VOLUME THE ELEVENTH

[Illustration: Burke Coat of Arms. ]

LONDONJOHN C. NIMMO14, KING WILLIAM STREET, STRAND, W. C. MDCCCLXXXVII

CONTENTS OF VOL. XI. 

 PAGEREPORT 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 LORDTHURLOW. 

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, onthe 5th of March, 1794, to inspect the Lords' Journals, in relation totheir proceedings on the trial of Warren Hastings, Esquire, and toreport what they find therein to the House. The second is aninstruction, given on the 17th day of the same month of March, to thiseffect: That your Committee do report to this House the several matterswhich have occurred since the commencement of the said prosecution, andwhich have, in their opinion, contributed to the duration thereof to thepresent time, with their observations thereupon. 

Your Committee is sensible that the duration of the said trial, and thecauses of that duration, as well as the matters which have thereinoccurred, do well merit the attentive consideration of this House. Wehave therefore endeavored with all diligence to employ the powers thathave 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 timewould admit. 

Your Committee has considered, first, the mere fact of the duration ofthe trial, which they find to have commenced on the 13th day ofFebruary, 1788, and to have continued, by various adjournments, to thesaid 17th of March. During that period the sittings of the Court haveoccupied 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 bythe number of days occupied in actual sitting. They find, on examiningthe duration of the trial with reference to the number of years whichit has lasted, that it has been owing to several prorogations and to onedissolution of Parliament; to discussions which are supposed to havearisen in the House of Peers on the legality of the continuance ofimpeachments from Parliament to Parliament; that it has been owing tothe number and length of the adjournments of the Court, particularly theadjournments on account of the Circuit, which adjournments wereinterposed in the middle of the session, and the most proper time forbusiness; that it has been owing to one adjournment made in consequenceof a complaint of the prisoner against one of your Managers, which tookup a space of ten days; that two days' adjournments were made on accountof the illness of certain of the Managers; and, as far as your Committeecan judge, two sitting days were prevented by the sudden and unexpecteddereliction of the defence of the prisoner at the close of the lastsession, your Managers not having been then ready to produce theirevidence in reply, nor to make their observations on the evidenceproduced by the prisoner's counsel, as they expected the whole to havebeen gone through before they were called on for their reply. In thissession your Committee computes that the trial was delayed about a weekor ten days. The Lords waited for the recovery of the MarquisCornwallis, the prisoner wishing to avail himself of the testimony ofthat noble person. 

With regard to the one hundred and eighteen days employed in actualsitting, the distribution of the business was in the manner following. 

There were spent, --

 DaysIn reading the articles of impeachment, and thedefendant's answer, and in debate on the modeof 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'scounsel, and defendant's addressesto the Court 22

Documentary and oral evidence on the part of thedefendant 23 ---- 118

The other head, namely, that the trial has occupied one hundred andeighteen days, or nearly one third of a year. This your Committeeconceives to have arisen from the following immediate causes. First, thenature and extent of the matter to be tried. Secondly, the generalnature and quality of the evidence produced: it was principallydocumentary evidence, contained in papers of great length, the whole ofwhich was often required to be read when brought to prove a single shortfact. Under the head of evidence must be taken into consideration thenumber and description of the witnesses examined and cross-examined. Thirdly, and principally, the duration of the trial is to be attributedto objections taken by the prisoner's counsel to the admissibility ofseveral documents and persons offered as evidence on the part of theprosecution. These objections amounted to sixty-two: they gave rise toseveral debates, and to twelve references from the Court to the Judges. On the part of the Managers, the number of objections was small; thedebates upon them were short; there was not upon them any reference tothe Judges; and the Lords did not even retire upon any of them to theChamber of Parliament. 

This last cause of the number of sitting days your Committee considersas far more important than all the rest. The questions upon theadmissibility of evidence, the manner in which these questions werestated and were decided, the modes of proceeding, the great uncertaintyof the principle upon which evidence in that court is to be admitted orrejected, --all these appear to your Committee materially to affect theconstitution of the House of Peers as a court of judicature, as well asits powers, and the purposes it was intended to answer in the state. ThePeers have a valuable interest in the conservation of their own lawfulprivileges. But this interest is not confined to the Lords. The Commonsought to partake in the advantage of the judicial rights and privilegesof that high court. Courts are made for the suitors, and not the suitorsfor the court. The conservation of all other parts of the law, the wholeindeed of the rights and liberties of the subject, ultimately dependsupon the preservation of the Law of Parliament in its original force andauthority. 

Your Committee had reason to entertain apprehensions that certainproceedings in this trial may possibly limit and weaken the means ofcarrying on any future impeachment of the Commons. As your Committeefelt these apprehensions strongly, they thought it their duty to beginwith humbly submitting facts and observations on the proceedingsconcerning evidence to the consideration of this House, before theyproceed to state the other matters which come within the scope of thedirections which they have received. 

To enable your Committee the better to execute the task imposed uponthem in carrying on the impeachment of this House, and to find someprinciple on which they were to order and regulate their conducttherein, they found it necessary to look attentively to the jurisdictionof the court in which they were to act for this House, and into its lawsand rules of proceeding, as well as into the rights and powers of theHouse 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, andinto the relation which exists between the Peers, on the one hand, andtheir attendants and assistants, the Judges of the Realm, Barons of theExchequer of the Coif, the King's learned counsel, and the CiviliansMasters of the Chancery, on the other, it appears to your Committee thatthese Judges, and other persons learned in the Common and Civil Laws, are no integrant and necessary part of that court. Their writs ofsummons are essentially different; and it does not appear that they orany of them have, or of right ought to have, a deliberative voice, either actually or virtually, in the judgments given in the High Courtof Parliament. Their attendance in that court is solely ministerial; andtheir answers to questions put to them are not to be regarded asdeclaratory of the Law of Parliament, but are merely consultoryresponses, in order to furnish such matter (to be submitted to thejudgment of the Peers) as may be useful in reasoning by analogy, so faras the nature of the rules in the respective courts of the learnedpersons consulted shall appear to the House to be applicable to thenature 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 GreatBritain for high crimes and misdemeanors before the Peers in the HighCourt of Parliament, the Peers are not triers or jurors only, but, bythe ancient laws and constitution of this kingdom, known by constantusage, are judges both of law and fact; and we conceive that the Lordsare bound not to act in such a manner as to give rise to an opinion thatthey have virtually submitted to a division of their legal powers, orthat, putting themselves into the situation of mere triers or jurors, they may suffer the evidence in the cause to be produced or not producedbefore them, according to the discretion of the judges of the inferiorcourts. 

LAW OF PARLIAMENT. 

Your Committee finds that the Lords, in matter of appeal or impeachmentin Parliament, are not of right obliged to proceed according to thecourse or rules of the Roman Civil Law, or by those of the law or usageof any of the inferior courts in Westminster Hall, but by the law andusage of Parliament. And your Committee finds that this has beendeclared in the most clear and explicit manner by the House of Lords, inthe year of our Lord 1387 and 1388, in the 11th year of King Richard II. 

Upon an appeal in Parliament then depending against certain greatpersons, peers and commoners, the said appeal was referred to theJustices, and other learned persons of the law. "At which time, " it issaid in the record, that "the Justices and Serjeants, and others thelearned in the Law Civil, were charged, by order of the King oursovereign aforesaid, to give their faithful counsel to the Lords of theParliament concerning the due proceedings in the cause of the appealaforesaid. The which Justices, Serjeants, and the learned in the law ofthe kingdom, and also the learned in the Law Civil, have taken the sameinto deliberation, and have answered to the said Lords of Parliament, that they had seen and well considered the tenor of the said appeal; andthey say that the same appeal was neither made nor pleaded according tothe order which the one law or the other requires. Upon which the saidLords of Parliament have taken the same into deliberation andconsultation, and by the assent of our said Lord the King, and of theircommon agreement, it was declared, that, in so high a crime as thatwhich is charged in this appeal, which touches the person of our lordthe King, and the state of the whole kingdom, perpetrated by persons whoare peers of the kingdom, along with others, the cause shall not betried in any other place but in Parliament, nor by any other law thanthe law and course of Parliament; and that it belongeth to the Lords ofParliament, and to their franchise and liberty by the ancient custom ofthe Parliament, to be judges in such cases, and in these cases to judgeby the assent of the King; and thus it shall be done in this case, bythe award of Parliament: because the realm of England has not beenheretofore, nor is it the intention of our said lord the King and theLords 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 causeas this appeal is, which cannot be tried anywhere but in Parliament, ashath been said before, by the course, process, and order used in anycourts or place inferior in the same kingdom; which courts and placesare not more than the executors of the ancient laws and customs of thekingdom, and of the ordinances and establishments of Parliament. It wasdetermined by the said Lords of Parliament, by the assent of our saidlord the King, that this appeal was made and pleaded well andsufficiently, and that the process upon it is good and effectual, according to the law and course of Parliament; and for such they decreeand adjudge it. "[2]

And your Committee finds, that toward the close of the same Parliamentthe same right was again claimed and admitted as the special privilegeof the Peers, in the following manner:--"In this Parliament, all theLords then present, Spiritual as well as Temporal, claimed as theirfranchise, that the weighty matters moved in this Parliament, and whichshall be moved in other Parliaments in future times, touching the peersof the land, shall be managed, adjudged, and discussed by the course ofParliament, and in no sort by the Law Civil, or by the common law of theland, used in the other lower courts of the kingdom; which claim, liberty, and franchise the King graciously allowed and granted to themin full Parliament. "[2]

Your Committee finds that the Commons, having at that time consideredthe appeal above mentioned, approved the proceedings in it, and, as faras in them lay, added the sanction of their accusation against thepersons who were the objects of the appeal. They also, immediatelyafterwards, impeached all the Judges of the Common Pleas, the ChiefBaron of the Exchequer, and other learned and eminent persons, bothpeers and commoners; upon the conclusion of which impeachments it wasthat the second claim was entered. In all the transactions aforesaid theCommons were acting parties; yet neither then nor ever since have theymade any objection or protestation, that the rule laid down by the Lordsin the beginning of the session of 1388 ought not to be applied to theimpeachments of commoners as well as peers. In many cases they haveclaimed the benefit of this rule; and in all cases they have acted, andthe Peers have determined, upon the same general principles. The Peershave always supported the same franchises; nor are there any precedentsupon the records of Parliament subverting either the general rule or theparticular privilege, so far as the same relates either to the course ofproceeding or to the rule of law by which the Lords are to judge. 

Your Committee observes also, that, in the commissions to the severalLords High Stewards who have been appointed on the trials of peersimpeached by the Commons, the proceedings are directed to be hadaccording to the law and custom of the kingdom, _and the custom ofParliament_: which words are not to be found in the commissions fortrying upon indictments. 

"As every court of justice, " says Lord Coke, "hath laws and customs forits 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 _Lexet Consuetudo Parliamenti_, that all weighty matters in any Parliamentmoved, concerning the peers of the realm, or Commons in Parliamentassembled, ought to be determined, adjudged, and discussed, by thecourse of the Parliament, and not by the Civil Law, nor yet by thecommon laws of this realm used in more inferior courts. " And afterfounding himself on this very precedent of the 11th of Richard II. , headds, _"This is the reason that Judges ought not to give any opinion ofa matter of Parliament, because it is not to be decided by the commonlaws, but secundum Legem et Consuetudinem Parliamenti: and so the Judgesin divers Parliaments have confessed!"_[3]

RULE OF PLEADING. 

Your Committee do not find that any rules of pleading, as observed inthe inferior courts, have ever obtained in the proceedings of the HighCourt of Parliament, in a cause or matter in which the whole procedurehas been within their original jurisdiction. Nor does your Committeefind that any demurrer or exception, as of false or erroneous pleading, hath been ever admitted to any impeachment in Parliament, as not comingwithin the form of the pleading; and although a reservation or protestis made by the defendant (matter of form, as we conceive) "to thegenerality, uncertainty, and insufficiency of the articles ofimpeachment, " yet no objections have in fact been ever made in any partof the record; and when verbally they have been made, (until thistrial, ) they have constantly been overruled. 

The trial of Lord Strafford[4] is one of the most important eras in thehistory of Parliamentary judicature. In that trial, and in thedispositions made preparatory to it, the process on impeachments was, ongreat consideration, research, and selection of precedents, brought verynearly to the form which it retains at this day; and great and importantparts of Parliamentary Law were then laid down. The Commons at that timemade new charges or amended the old as they saw occasion. Upon anapplication from the Commons to the Lords, that the examinations takenby their Lordships, at their request, might be delivered to them, forthe 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 clauseof 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, thatthe Earl of Strafford might answer with the more clearness andexpedition: _not that they are bound by this way of SPECIAL charge; andtherefore they have taken care in their House, upon protestation, thatthis shall be no prejudice to bind them from proceeding in GENERAL inother cases, and that they are not to be ruled by proceedings in othercourts, which protestation they have made for the preservation of thepower of Parliament; and they desire that the like care may be had inyour Lordships' House_. "[5] This protestation is entered on the Lords'Journals. Thus careful were the Commons that no exactness used by themfor a temporary accommodation, should become an example derogatory tothe larger rights of Parliamentary process. 

At length the question of their being obliged to conform to any of therules 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 WestminsterHall]. Thereupon the Lords, being moved to adjourn, adjourned to theHouse of Lords, and on debate, " as appears by a note, "it was agreedthat the question should be proposed in Westminster Hall. "[6]Accordingly, when the Lords returned the same day into the Hall, thequestion was put by Lord Nottingham, and stated to the Judges by theLord Chancellor: "Whether, by the _law of England_, and constantpractice in all prosecutions by _indictment and information_ for crimesand misdemeanors by writing or speaking, the particular words supposedto be written or spoken must not be expressly specified in theindictment or information?" On this question the Judges, _seriatim_, andin open court, delivered their opinion: the substance of which was, "That, by the laws of England, and the constant practice in WestminsterHall, the words ought to be expressly specified in the indictment orinformation. " Then the Lords adjourned, and did not come into the Halluntil the 20th. In the intermediate time they came to resolutions on thematter of the question put to the Judges. Dr. Sacheverell, being foundguilty, moved in arrest of judgment upon two points. The first, which hegrounded on the opinion of the Judges, and which your Committee thinksmost to the present purpose, was, "That no entire clause, or sentence, or expression, in either of his sermons or dedications, is particularlyset forth in his impeachment, which he has already heard the Judgesdeclare 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 beforeput to the Judges _in Westminster Hall_, and their answer thereto, theirLordships had fully debated and considered of that matter, and had cometo the following resolution: 'That this House will proceed to thedetermination of the impeachment of Dr. Henry Sacheverell, according tothe _law of the land, and the law and usage of Parliament_. ' Andafterwards to this resolution: 'That, by _the law and usage ofParliament_ in prosecutions for high crimes and misdemeanors by writingor speaking, the particular words supposed to be criminal are _notnecessary_ to be expressly specified in such impeachment. ' So that, intheir Lordships' opinion, the law and usage of the High Court ofParliament being _a part of the law of the land_, and that usage notrequiring that words should be exactly specified in impeachments, theanswer of the Judges, which related only to the course of _indictmentsand informations_, does not in the least affect your case. "[8]

On this solemn judgment concerning the law and usage of Parliament, itis to be remarked: First, that the impeachment itself is not to bepresumed inartificially drawn. It appears to have been the work of someof the greatest lawyers of the time, who were perfectly versed in themanner of pleading in the courts below, and would naturally haveimitated their course, if they had not been justly fearful of setting anexample which might hereafter subject the plainness and simplicity of aParliamentary proceeding to the technical subtilties of the inferiorcourts. Secondly, that the question put to the Judges, and their answer, were strictly confined to the law and practice below; and that nothingin either had a tendency to their delivering an opinion concerningParliament, its laws, its usages, its course of proceeding, or itspowers. Thirdly, that the motion in arrest of judgment, grounded on theopinion of the Judges, was made only by Dr. Sacheverell himself, and notby his counsel, men of great skill and learning, who, if they thoughtthe objections had any weight, would undoubtedly have made and arguedthem. 

Here, as in the case of the 11th King Richard II. , the Judges declaredunanimously, that such an objection would be fatal to such a pleading inany 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 ofproceeding in the courts below. 

Your Committee finds that a protest, with reasons at large, was enteredby several lords against this determination of their court. [9] It isalways an advantage to those who protest, that their reasons appear uponrecord; whilst the reasons of the majority, who determine the question, do not appear. This would be a disadvantage of such importance asgreatly to impair, if not totally to destroy, the effect of precedent asauthority, if the reasons which prevailed were not justly presumed to bemore valid than those which have been obliged to give way: the formerhaving governed the final and conclusive decision of a competent court. But your Committee, combining the fact of this decision with the earlydecision just quoted, and with the total absence of any precedent of anobjection, before that time or since, allowed to pleading, or what hasany relation to the rules and principles of pleading, as used inWestminster Hall, has no doubt that the House of Lords was governed inthe 9th of Anne by the very same principles which it had solemnlydeclared in the 11th of Richard II. 

But besides the presumption in favor of the reasons which must besupposed to have produced this solemn judgment of the Peers, contrary tothe practice of the courts below, as declared by all the Judges, it isprobable that the Lords were unwilling to take a step which might admitthat anything in that practice should be received as their rule. It mustbe observed, however, that the reasons against the article alleged inthe protest were by no means solely bottomed in the practice of thecourts below, as if the main reliance of the protesters was upon thatusage. The protesting minority maintained that it was not agreeable to_several precedents in Parliament_; of which they cited many in favorof their opinion. It appears by the Journals, that the clerks wereordered to search for precedents, and a committee of peers was appointedto inspect the said precedents, and to report upon them, --and that theydid inspect and report accordingly. But the report is not entered on theJournals. It is, however, to be presumed that the greater number and thebetter precedents supported the judgment. Allowing, however, theirutmost force to the precedents there cited, they could serve only toprove, that, in the case of _words_, (to which alone, and not the caseof a _written_ libel, the precedents extended, ) such a special averment, according to the tenor of the words, had been used; but not that it wasnecessary, or that ever any plea had been rejected upon such anobjection. As to the course of Parliament, resorted to for authority inthis part of the protest, the argument seems rather to affirm than todeny the general proposition, that its own course, and not that of theinferior courts, had been the rule and law of Parliament. 

As to the objection, taken in the protest, drawn from natural right, theLords knew, and it appears in the course of the proceeding, that thewhole 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 ofanything which could be alleged in the extenuation or exculpation as ifhis libellous sermons had been entered _verbatim_ upon the recordedimpeachment. It was adjudged sufficient to state the crime _generally_in the impeachment. The libels were given _in evidence_; and it was notthen thought of, that nothing should be given in evidence which was notspecially 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 onthe Law of Parliament, as a part of the law of the land. It is the moreforcible as concurring with the judgment in the 11th of Richard II. , andwith the total silence of the Rolls and Journals concerning anyobjection to pleading ever being suffered to vitiate an impeachment, orto 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 thisadjudication, the rules of pleading below could ever have been adoptedin a Parliamentary proceeding, when it is considered that the severalstatutes of Jeofails, not less than twelve in number, [11] have been madefor the correction of an over-strictness in pleading, to the prejudiceof substantial justice: yet in no one of these is to be discovered theleast mention of any proceeding in Parliament. There is no doubt thatthe legislature would have applied its remedy to that grievance inParliamentary proceedings, if it had found those proceedings embarrassedwith what Lord Mansfield, from the bench, and speaking of the matter ofthese statutes, very justly calls "disgraceful subtilties. "

What is still more strong to the point, your Committee finds that in the7th of William III. An act was made for the regulating of trials fortreason and misprision of treason, containing several regulations forreformation of proceedings at law, both as to matters of form andsubstance, as well as relative to evidence. It is an act thought mostessential to the liberty of the subject; yet in this high and criticalmatter, so deeply affecting the lives, properties, honors, and even theinheritable blood of the subject, the legislature was so tender of thehigh powers of this high court, deemed so necessary for the attainmentof the great objects of its justice, so fearful of enervating any of itsmeans or circumscribing any of its capacities, even by rules andrestraints the most necessary for the inferior courts, that they guardedagainst it by an express proviso, "that neither this act, nor anythingtherein contained, shall any ways extend to _any impeachment or otherproceedings 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 wholecourse of Parliamentary proceedings, the Managers for this House haveever since considered it as an indispensable duty to assert the sameprinciple, in all its latitude, upon all occasions on which it couldcome in question, --and to assert it with an energy, zeal, andearnestness proportioned to the magnitude and importance of the interestof the Commons of Great Britain in the religious observation of therule, _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 ofhigh treason the lords who had entered into the rebellion of thatperiod. This was about six years after the decision in the case ofSacheverell. On the trial of one of these lords, (the Lord Wintoun, [13])after verdict, the prisoner moved in arrest of judgment, and exceptedagainst the impeachment for error, on account of the treason thereinlaid "not being described with sufficient certainty, --the day on whichthe treason was committed not having been alleged. " His counsel washeard to this point. They contended, "that the forfeitures in cases oftreason are very great, and therefore they humbly conceived that theaccusation ought to contain all the certainty it is capable of, that theprisoner may not by _general allegations_ be rendered incapable todefend himself in a case which may prove fatal to him: that they wouldnot trouble their Lordships with citing authorities; for they believedthere is not one gentleman of the long robe but will agree that anindictment for any capital offence to be erroneous, if the offence benot alleged to be committed on a certain day: that this impeachment setforth only that in or about the months of September, October, orNovember, 1715, the offence charged in the impeachment had beencommitted. " The counsel argued, "that a proceeding by impeachment is aproceeding at the Common Law, for _Lex Parliamentaria_ is a part ofCommon Law, and they submitted whether there is not the same certaintyrequired in one method of proceeding at Common Law as in another. "

The matter was argued elaborately and learnedly, not only on the generalprinciples of the proceedings below, but on the inconvenience andpossible hardships attending this uncertainty. They quoted Sacheverell'scase, in whose impeachment "the precise days were laid when the Doctorpreached each of these two sermons; and that by a like reason a certainday ought to be laid in the impeachment when this treason was committed;and that the authority of Dr. Sacheverell's case seemed so much strongerthan the case in question as the crime of treason is higher than that ofa misdemeanor. "

Here the Managers for the Commons brought the point a second time to anissue, and that on the highest of capital cases: an issue, the event ofwhich was to determine forever whether their impeachments were to beregulated by the law as understood and observed in the inferior courts. Upon the usage below there was no doubt; the indictment wouldunquestionably have been quashed. But the Managers for the Commons stoodforth upon this occasion with a determined resolution, and no less thanfour of them _seriatim_ rejected the doctrine contended for by LordWintoun's counsel. They were all eminent members of Parliament, andthree of them great and eminent lawyers, namely, the thenAttorney-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 ofyour Lordships' time in quoting of authorities, and using arguments toshow your Lordships what would quash an indictment in _the courtsbelow_, that they seemed to forget they are now in _a Court ofParliament, and on an impeachment of the Commons of Great Britain_. For, should the Commons admit all that they have offered, it will not followthat the impeachment of the Commons is insufficient; and I must observeto your Lordships, that neither of the learned gentlemen have offered toproduce one instance relative to an impeachment. I mean to show that thesufficiency of an impeachment was never called in question for thegenerality of the charge, or that any instance of that nature wasoffered at before. The Commons don't conceive, that, if this exceptionwould quash an indictment, it would therefore make the impeachmentinsufficient. I hope it never will be allowed here as a reason, thatwhat quashes an indictment in the courts below will make insufficient animpeachment brought by the Commons of Great Britain. "

The Attorney-General supported Mr. Walpole in affirmance of thisprinciple. He said, --"I would follow the steps of the learned gentlemanwho spoke before me, and I think he has given a good answer to theseobjections. I would take notice that we are upon an impeachment, notupon an indictment. The courts below have set forms to themselves, whichhave prevailed for a long course of time, and thereby are become theforms by which those courts are to govern themselves; but it never wasthought that the forms of those courts had any influence on theproceedings of Parliament. In Richard II. 's time, it is said in therecords of Parliament, that proceedings in Parliament are not to begoverned by the forms of Westminster Hall. We are in the case of animpeachment, and in the Court of Parliament. Your Lordships have alreadygiven judgment against six upon this impeachment, and it is warranted bythe precedents in Parliament; therefore we insist that the articles aregood in substance. "

Mr. Cowper. --"They [the counsel] cannot but know that the usages ofParliaments are part of the laws of the land, although they differ inmany instances from the Common Law, as practised in the inferior courts, in point of form. My Lords, if the Commons, in preparing articles ofimpeachment, should govern themselves by precedents of indictments, inmy humble opinion they would depart from the ancient, nay, the constant, usage and practice of Parliament. It is well known that the form of animpeachment has very little resemblance to that of an indictment; and Ibelieve the Commons will endeavor to preserve the difference, byadhering to their own precedents. "

Sir William Thomson. --"We must refer to the forms and proceedings in theCourt of Parliament, and which must be owned to be part of the law ofthe land. It has been mentioned already to your Lordships, that theprecedents in impeachments are not so nice and precise in form as in theinferior courts; and we presume your Lordships will be governed by theforms of your own court, (especially forms that are not essential tojustice, ) as the courts below are by theirs: which courts differ onefrom the other in many respects as to their forms of proceedings, andthe practice of each court is esteemed as the law of that court. "

The Attorney-General in reply maintained his first doctrine. "There isno uncertainty; in it _that can be to the prejudice of the prisoner_: weinsist, it is according to _the forms of Parliament_: he has pleaded toit, and your Lordships have found him guilty. "

The opinions of the Judges were taken in the House of Lords, on the 19thof March, 1715, upon two questions which had been argued in arrest ofjudgment, grounded chiefly on the practice of the courts below. To thefirst the Judges answered, --"_It is necessary_ that there be a _certain_day laid in such indictments, on which the fact is alleged to becommitted; and that alleging in such indictments that the fact wascommitted at or about a certain day would not be sufficient. " To thesecond they answered, "that, although a day certain, when the fact issupposed to be done, be alleged in such indictments, yet it is notnecessary upon the trial to prove the fact to be committed upon _thatday_; but it is sufficient, if proved to be done _on any other daybefore_ the indictment found. "

Then it was "agreed by the House, and ordered, that the Lord HighSteward be directed to acquaint the prisoner at the bar in WestminsterHall, 'that the Lords have considered of the matters moved in arrest ofjudgment, and are of opinion that they are not sufficient to arrest thesame, but that the _impeachment_ is sufficiently certain in point oftime _according to the form of impeachments in Parliament_. '"[14]

On this final adjudication, (given after solemn argument, and aftertaking the opinion of the Judges, ) in affirmance of the Law ofParliament against the undisputed usage of the courts below, yourCommittee has to remark, --1st, The preference of the custom ofParliament to the usage below. By the very latitude of the charge, theParliamentary accusation gives the prisoner fair notice to preparehimself upon all points: whereas there seems something insnaring in theproceedings upon indictment, which, fixing the specification of a daycertain for the treason or felony as absolutely necessary in thecharge, gives notice for preparation only on _that day_, whilst theprosecutor has the whole range of time antecedent to the indictment toallege and give evidence of facts against the prisoner. It has beenusual, particularly in later indictments, to add, "at several othertimes"; but the strictness of naming one day is still necessary, and thewant of the larger words would not quash the indictment. 2dly, Acomparison of the extreme rigor and exactness required in the more_formal_ part of the proceeding (the indictment) with the extreme laxityused in the _substantial_ part (that is to say, the evidence received toprove the fact) fully demonstrates that the partisans of those formswould put shackles on the High Court of Parliament, with which they arenot willing, or find it wholly impracticable, to bind themselves. 3dly, That the latitude of departure from the letter of the indictment (whichholds in other matters besides this) is in appearance much more contraryto natural justice than anything which has been objected against theevidence offered by your Managers, under a pretence that it exceeded thelimits of pleading. For, in the case of indictments below, it must beadmitted that the prisoner may be unprovided with proof of an alibi, andother material means of defence, or may find some matters unlooked-forproduced against him, by witnesses utterly unknown to him: whereasnothing was offered to be given in evidence, under any of the articlesof this impeachment, except such as the prisoner must have had perfectknowledge of; the whole consisting of matters sent over by himself tothe Court of Directors, and authenticated under his own hand. Nosubstantial injustice or hardship of any kind could arise from ourevidence under our pleading: whereas in theirs very great and seriousinconveniencies might happen. 

Your Committee has further to observe, that, in the case of LordWintoun, as in the case of Dr. Sacheverell, the Commons had in theirManagers persons abundantly practised in the law, as used in theinferior jurisdictions, who could easily have followed the precedents ofindictments, 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 hisDiscourses, [15] fully recognizes those principles for which yourManagers have contended, and which have to this time been uniformlyobserved in Parliament. In a very elaborate reasoning on the case of atrial 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 mattersappear with proper light and certainty to _a common understanding_, without that minute exactness which is required in criminal proceedingsin Westminster Hall. In these cases the rule has always been, _Loquendumut vulgus_. " And in a note he says, --"In the proceeding againstMortimer, in this Parliament, _so little regard was had to the formsused in legal proceedings_, that he who had been frequently summoned toParliament as a baron, and had lately been created Earl of March, isstyled through the whole record merely Roger de Mortimer. "

The departure from the common forms in the first case alluded to byFoster (viz. , the trial of Berkeley, Maltravers, &c. , for treason, inthe murder of Edward II. [16]) might be more plausibly attacked, becausethey were tried, though in Parliament, by a jury of freeholders: whichcircumstance might have given occasion to justify a nearer approach tothe forms of indictments below. But no such forms were observed, nor inthe 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 CharlesII. Until the trial of Warren Hastings, Esquire, in all trials inParliament, as well upon impeachments of the Commons as on indictmentsbrought up by _Certiorari_, when any matter of law hath been agitated atthe bar, or in the course of trial hath been stated by any lord in thecourt, it hath been the prevalent custom to state the same in opencourt. Your Committee has been able to find, since that period, no morethan one precedent (and that a precedent rather in form than insubstance) of the opinions of the Judges being taken privately, exceptwhen the case on both sides has been closed, and the Lords have retiredto consider of their verdict or of their judgment thereon. Upon thesoundest and best precedents, the Lords have improved on the principlesof publicity and equality, and have called upon the parties severally toargue the matter of law, previously to a reference to the Judges, who, on their parts, have afterwards, _in open court_, delivered theiropinions, often by the mouth of one of the Judges, speaking for himselfand the rest, and in their presence: and sometimes all the Judges havedelivered their opinion _seriatim_, (even when they have been unanimousin it, ) together with their reasons upon which their opinion had beenfounded. This, from the most early times, has been the course in alljudgments in the House of Peers. Formerly even the record contained thereasons of the decision. "The reason wherefore, " said Lord Coke, "therecords of Parliaments have been so highly extolled is, that therein isset 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] onthe suggestion of a question in law to the Judges, Lord Danby demandedof the Lord High Steward, the Earl of Nottingham, "whether it would beproper here [in open court] to ask the question of your Grace, or topropose it to the Judges?" The Lord High Steward answered, --"If yourLordships doubt of anything whereon a question in law ariseth, thelatter opinion, and the _better_ for the prisoner, is, _that it must bestated in the presence of the prisoner, that he may know whether thequestion be truly put_. It hath _sometimes_ been practised otherwise, and the Peers have sent for the Judges, and have asked their opinion inprivate, and have come back, and have given their verdict according tothat opinion; and there is scarcely a precedent of its being otherwisedone. There is a later authority in print that doth settle the point soas I tell you, and I do conceive _it ought to be followed_; and itbeing 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, hesaid, --"My Lord Cornwallis, my Lords the Peers, since they havewithdrawn, have conceived a doubt in some matter [of law arising uponthe matter] of fact in your case; and they have that tender regard of aprisoner at the bar, _that they will not suffer a case to be put up inhis absence_, lest it should chance to prejudice him by being _wrongstated_. " Accordingly the question was both put and the Judges' answergiven publicly and in his presence. 

Very soon after the trial of Lord Cornwallis, the impeachment againstLord Stafford was brought to a hearing, --that is, in the 32d of CharlesII. 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 oftreason, " the Lord High Steward told Lord Stafford, that "all the Judgesthat assist them, _and are here in your Lordship's presence andhearing_, should deliver their opinions whether it be doubtful anddisputable or not. " Accordingly the Judges delivered their opinion, andeach argued it (though they were all agreed) _seriatim_ and _in opencourt_. Another abstract point of law was also proposed from the bar, onthe same trial, concerning the legal sentence in high treason; and inthe same manner the Judges on reference delivered their opinion _in opencourt_; and no objection, was taken to it as anything new orirregular. [19]

In the 1st of James II. Came on a remarkable trial of a peer, --the trialof Lord Delamere. On that occasion a question of law was stated. Therealso, in conformity to the precedents and principles given on the trialof Lord Cornwallis, and the precedent in the impeachment of LordStafford, the then Lord High Steward took care that the opinion of theJudges should be given in open court. 

Precedents grounded on principles so favorable to the fairness andequity of judicial proceedings, given in the reigns of Charles II. AndJames II. , were not likely to be abandoned after the Revolution. Thefirst trial of a peer which we find after the Revolution was that of theEarl of Warwick. 

In the case of the Earl of Warwick, 11 Will. III. , a question in lawupon evidence was put to the Judges; the statement of the question wasmade in open court by the Lord High Steward, Lord Somers:--"If there besix in company, and one of them is killed, the other five are afterwardsindicted, and three are tried and found guilty of manslaughter, and upontheir prayers have their clergy allowed, and the burning in the hand isrespited, but not pardoned, --whether any of the three can be a witnesson the trial of the other two?"

Lord Halifax. --"I suppose your Lordships will have the opinion of theJudges upon this point: _and that must be in the presence of theprisoner_. "

Lord High Steward (Lord Somers). --"_It must certainly be in the presenceof the prisoner_, if you ask the Judges' opinions. "[20]

In the same year, Lord Mohun was brought to trial upon an indictment formurder. In this single trial a greater number of questions was put tothe Judges in matter of law than probably was ever referred to theJudges in all the collective body of trials, before or since thatperiod. That trial, therefore, furnishes the largest body of authenticprecedents in this point to be found in the records of Parliament. Thenumber of questions put to the Judges in this trial was twenty-three. They all originated from the Peers themselves; yet the Court called uponthe party's counsel, as often as questions were proposed to be referredto the Judges, as well as on the counsel for the Crown, to argue everyone of them _before_ they went to those learned persons. Many of thequestions accordingly were argued at the bar at great length. Theopinions were given and argued _in open court_. Peers frequentlyinsisted that the Judges should give their opinions _seriatim_, whichthey did always publicly in the court, with great gravity and dignity, and greatly to the illustration of the law, as they held and acted uponit in their own courts. [21]

In Sacheverell's case (just cited for another purpose) the Earl ofNottingham demanded whether he might not propose a question of law tothe Judges _in open court_. It was agreed to; and the Judges gave theiranswer _in open court_, though this was after verdict given: and inconsequence of the advantage afforded to the prisoner in hearing _theopinion_ of the Judges, he was thereupon enabled to move in arrest ofjudgment. 

The next precedent which your Committee finds of a question put by theLords, sitting as a court of judicature, to the Judges, pending thetrial, was in the 20th of George II. , when Lord Balmerino, who was triedon an indictment for high treason, having raised a doubt whether theevidence proved him to be at the place assigned for the overt act oftreason on the day laid in the indictment, the point was argued at thebar by the counsel for the Crown in the prisoner's presence, and for hissatisfaction. The prisoner, on hearing the argument, waived hisobjection; but the then Lord President moving their Lordships to adjournto the Chamber of Parliament, the Lords adjourned accordingly, and aftersome time returning into Westminster Hall, the Lord High Steward (LordHardwicke) said, --

"Your Lordships were pleased, in the Chamber of Parliament, to come to aresolution that the opinion of the learned and reverend Judges should betaken on the following question, namely, Whether it is necessary that anovert act of high treason should be proved to have been committed on theparticular day laid in the indictment? Is it your Lordships' pleasurethat 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 byyour Lordships is, Whether it be necessary that an overt act of hightreason should be proved to be committed on the particular day laid inthe indictment? We are all of opinion that it is not necessary to provethe overt act to be committed on the particular day laid in theindictment; 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 laidis circumstance and form only, and not material in point of proof: thisis the known constant course of proceeding in trials. "

Here the case was made for the Judges, for the satisfaction of one ofthe Peers, after the prisoner had waived his objection. Yet it wasthought proper, as a matter of course and of right, that the Judgesshould state the question put to them in the open court, and in presenceof the prisoner, --and that in the same open manner, and in the samepresence, 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 ofprecedents so uniform, so accordant with principle, made in such times, and under the authority of a succession of such great men, ought not tohave been departed from. The single precedent to the contrary, to whichyour Committee has alluded above, was on the trial of the Duchess ofKingston, in the reign of his present Majesty. But in that instance thereasons of the Judges were, by order of the House, delivered in writing, and entered at length on the Journals:[23] so that the legal principleof the decision is equally to be found: which is not the case in any oneinstance of the present impeachment. 

The Earl of Nottingham, in Lord Cornwallis's case, conceived, though itwas proper and agreeable to justice, that this mode of putting questionsto the Judges and receiving their answer in public was not supported byformer precedents; but he thought a book of authority had declared infavor of this course. Your Committee is very sensible, that, antecedentto the great period to which they refer, there are instances ofquestions having been put to the Judges privately. But we find the_principle_ of publicity (whatever variations from it there might be inpractice) to have been so clearly established at a more early period, that all the Judges of England resolved in Lord Morley's trial, in theyear 1666, (about twelve years before the observation of LordNottingham, ) _on a supposition that the trial should be actuallyconcluded, and the Lords retired to the Chamber of Parliament to consulton their verdict_, that even in that case, (much stronger than theobservation of your Committee requires for its support, ) if theiropinions should then be demanded by the Peers, for the information oftheir private conscience, yet they determined that they should be givenin public. This resolution is in itself so solemn, and is so bottomed onconstitutional principle and legal policy, that your Committee havethought fit to insert it _verbatim_ in their Report, as they relied uponit 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 theevidence given, and the prisoner withdrawn, and they gone to consult ofthe verdict_, should desire to speak with any of the Judges, to havetheir opinion upon any point of law, that, if the Lord Steward spoke tous to go, we should go to them; but when the Lords asked us anyquestion, we should not deliver any private opinion, but let them know_we were not to deliver any private opinion without conference with therest 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 avoidingsuspicion which might grow by private opinions: ALL resolutions ofJudges 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 (asshould be remembered to their lasting honor) did not think it derogatoryfrom their dignity, nor from their duty to the House of Lords, to takesuch measures concerning the publicity of their resolutions as shouldsecure them from suspicion. They knew that the mere circumstance ofprivacy in a judicature, where any publicity is in use, tends to begetsuspicion and jealousy. Your Committee is of opinion that the honorablepolicy of avoiding suspicion by avoiding privacy is not lessened byanything which exists in the present time and in the present trial. 

Your Committee has here to remark, that this learned Judge seemed tothink the case of Lord Audley (Castlehaven) to be more against him thanin truth it was. The precedents were as follow. The opinions of theJudges were taken three times: the first time by the Attorney-General atSerjeants' Inn, antecedent to the trial; the last time, after the Peershad retired to consult on their verdict; the middle time _was during thetrial itself_: and here the opinion was taken in open court, agreeablyto what your Committee contends to have been the usage ever since thisresolution 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 werefurnished from times in which the judicial proceedings in Parliament, and in all our courts, had obtained a very regular form. They werefurnished at a period in which Justice Blackstone remarks that more lawswere passed of importance to the rights and liberties of the subjectthan in any other. These precedents lean all one way, and carry no marksof accommodation to the variable spirit of the times and of politicaloccasions. They are the same before and after the Revolution. They arethe same through five reigns. The great men who presided in thetribunals which furnished these examples were in opposite politicalinterests, but all distinguished for their ability, integrity, andlearning. 

The Earl of Nottingham, who was the first on the bench to promulgatethis publicity as a rule, has not left us to seek the principle in thecase: that very learned man considers the publicity of the questions andanswers as a matter of justice, _and of justice favorable to theprisoner_. In the case of Mr. Hastings, the prisoner's counsel did notjoin your Committee in their endeavors to obtain the publicity wedemanded. Their reasons we can only conjecture. But your Managers, acting for this House, were not the less bound to see that the dueParliamentary course should be pursued, even when it is most favorableto those whom they impeach. If it should answer the purposes of oneprisoner to waive the rights which belong to all prisoners, it was theduty of your Managers to protect those general rights against thatparticular prisoner. It was still more their duty to endeavor that their_own_ questions should not be erroneously stated, or cases put whichvaried from those which they argued, or opinions given in a manner notsupported by the spirit of our laws and institutions or by analogy withthe practice of all our courts. 

Your Committee, much in the dark about a matter in which it was sonecessary that they should receive every light, have heard, that, indebating this matter abroad, it has been objected, that many of theprecedents on which we most relied were furnished in the courts of theLord High Steward, and not in trials where the Peers were Judges, --andthat the Lord High Steward not having it in his power to retire with thejuror Peers, the Judges' opinions, from necessity, not from equity tothe parties, were given before that magistrate. 

Your Committee thinks it scarcely possible that the Lords could beinfluenced by such a feeble argument. For, admitting the fact to havebeen as supposed, there is no sort of reason why so uniform a course ofprecedents, in a legal court composed of a peer for judge and peers fortriers, a course so favorable to all parties and to equal justice, acourse in concurrence with the procedure of all our other courts, shouldnot have the greatest authority over their practice in every trialbefore _the whole body_ of the peerage. 

The Earl of Nottingham, who acted as High Steward in one of thesecommissions, certainly knew what he was saying. He gave no such reason. His argument for the publicity of the Judges' opinions did not turn atall on the nature of his court, or of his office in that court. Itrested on the equity of the principle, and on the fair dealing due tothe 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 apoint quite settled, and no longer standing in need of being supportedby reason or precedent. 

But it is a mistake that the precedents stated in this Report are whollydrawn from proceedings in that kind of court. Only two are cited whichare furnished from a court constituted in the manner supposed. The restwere in trials by all the peers, and not by a jury of peers with an HighSteward. 

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 butSpeaker _pro tempore_, and giveth his vote as well as the other lords:this changeth not the nature of the court. And the Lords declared, thatthey have power enough to proceed to trial, though the King should notname an High Steward. " On the same day, "it is declared and ordered bythe Lords Spiritual and Temporal in Parliament assembled, that theoffice of High Steward on trials of peers upon impeachments is notnecessary to the House of Peers, but that the Lords may proceed in suchtrials, if an High Steward is not appointed according to their humbledesire. "[26]

To put the matter out of all doubt, and to remove all jealousy on thepart of the Commons, the commission of the Lord High Steward was thenaltered. 

These rights, contended for by the Commons in their impeachments, andadmitted by the Peers, were asserted in the proceedings preparatory tothe trial of Lord Stafford, in which that long chain of uniformprecedents with regard to the publicity of the Judges' opinions intrials begins. 

For these last citations, and some of the remarks, your Committee areindebted to the learned and upright Justice Foster. They have comparedthem with the Journals, and find them correct. The same excellent authorproceeds to demonstrate that whatever he says of trials by impeachmentis equally applicable to trials before the High Steward on indictment;and consequently, that there is no ground for a distinction, with regardto the public declaration of the Judges' opinions, founded on theinapplicability of either of these cases to the other. The argument onthis whole matter is so satisfactory that your Committee has annexed itat large to their Report. [27] As there is no difference in fact betweenthese trials, (especially since the act which provides that all thepeers shall be summoned to the trial of a peer, ) so there is nodifference in the reason and principle of the publicity, let the matterof the Steward's jurisdiction, be as it may. 

PUBLICITY GENERAL. 

Your Committee do not find any positive law which binds the judges ofthe courts in Westminster Hall publicly to give a reasoned opinion fromthe bench, in support of their judgment upon matters that are statedbefore them. But the course hath prevailed from the oldest times. Ithath been so general and so uniform, that it must be considered as thelaw of the land. It has prevailed, so far as we can discover, not onlyin all the courts which now exist, whether of law or equity, but inthose which have been suppressed or disused, such as the Court of Wardsand the Star Chamber. An author quoted by Rushworth, speaking of theconstitution of that chamber, says, --"And so it was resolved _by theJudges, on reference made to them; and their opinion, after deliberatehearing, and view of former precedents, was published in opencourt_. "[28] It appears elsewhere in the same compiler that all theirproceedings were public, even in deliberating previous to judgment. 

The Judges in their reasonings have always been used to observe on thearguments employed by the counsel on either side, and on the authoritiescited by them, --assigning the grounds for rejecting the authoritieswhich they reject, or for adopting those to which they adhere, or for adifferent construction of law, according to the occasion. Thispublicity, not only of decision, but of deliberation, is not confined totheir several courts, whether of law or equity, whether above or at NisiPrius; but it prevails where they are assembled, in the ExchequerChamber, or at Serjeants' Inn, or wherever matters come before theJudges collectively for consultation and revision. It seems to yourCommittee to be moulded in the essential frame and constitution ofBritish judicature. Your Committee conceives that the Englishjurisprudence has not any other sure foundation, nor, consequently, thelives and properties of the subject any sure hold, but in the maxims, rules, and principles, and juridical traditionary line of decisionscontained in the notes taken, and from time to time published, (mostlyunder the sanction of the Judges, ) called Reports. 

In the early periods of the law it appears to your Committee that acourse still better had been pursued, but grounded on the sameprinciples; and that no other cause than the multiplicity of businessprevented its continuance. "Of ancient time, " says Lord Coke, "in casesof difficulties, either criminal or civil, _the reasons and causes_ ofthe judgment were set down _upon the record_, and so continued in thereigns of Ed. I. And Ed. II. , and then there was no need of reports; butin the reign of Ed. III. (when the law was in its height) the causes andreasons of judgments, in respect of the multitude of them, are not setdown in the record, but then _the great casuists and reporters of cases_(certain grave and sad men) published the cases, _and the reasons andcauses of the judgments or resolutions_, which, from the beginning ofthe reign of Ed. III. And since, we have in print. But these also, though of great credit and excellent use in their kind, _yet farunderneath 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 whichCoke alludes, have continued without interruption to the time in whichwe live. It is well known that the elementary treatises of law, and thedogmatical treatises of English jurisprudence, whether they appear underthe names of institutes, digests, or commentaries, do not rest on theauthority of the supreme power, like the books called the Institute, Digest, Code, and authentic collations in the Roman law. With usdoctrinal books of that description have little or no authority, otherthan as they are supported by the adjudged cases and reasons given atone 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 booksof 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. Itwas fortunate for the Constitution of this kingdom, that, in thejudicial proceedings in the case of ship-money, the Judges did not thenventure to depart from the ancient course. They gave and they arguedtheir judgment in open court. [30] Their reasons were publicly given, andthe reasons assigned for their judgment took away all its authority. Thegreat historian, Lord Clarendon, at that period a young lawyer, has toldus that the Judges gave as law from the bench what every man in the hallknew not to be law. 

This publicity, and this mode of attending the decision with itsgrounds, is observed not only in the tribunals where the Judges presidein a judicial capacity, individually or collectively, but where they areconsulted by the Peers on the law in all _writs of error_ brought frombelow. In the opinion they give of the matter assigned as error, one atleast of the Judges argues the questions at large. He argues thempublicly, though in the Chamber of Parliament, --and in such a manner, that every professor, practitioner, or student of the law, as well asthe parties to the suit, may learn the opinions of all the Judges of allthe courts upon those points in which the Judges in one court might bemistaken. 

Your Committee is of opinion that nothing better could be devised byhuman wisdom than argued judgments publicly delivered for preservingunbroken the great traditionary body of the law, and for marking, whilst that great body remained unaltered, every variation in theapplication and the construction of particular parts, for pointing outthe ground of each variation, and for enabling the learned of the barand all intelligent laymen to distinguish those changes made for theadvancement of a more solid, equitable, and substantial justice, according to the variable nature of human affairs, a progressiveexperience, and the improvement of moral philosophy, from thosehazardous changes in any of the ancient opinions and decisions which mayarise from ignorance, from levity, from false refinement, from a spiritof innovation, or from other motives, of a nature not more justifiable. 

Your Committee, finding this course of proceeding to be concordant withthe character and spirit of our judicial proceeding, continued from timeimmemorial, supported by arguments of sound theory, and confirmed byeffects highly beneficial, could not see without uneasiness, in thisgreat trial for Indian offences, a marked innovation. Against theirreiterated requests, remonstrances, and protestations, the opinions ofthe Judges were always taken secretly. Not only the constitutionalpublicity for which we contend was refused to the request and entreatyof 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 tothe Judges in that place, and hoped to receive their answer openly, according to the approved good customs of that and of other courts, theLords instantly put a stop to the further proceeding by an immediateadjournment to the Chamber of Parliament. Upon this adjournment, we findby the Lords' Journals, that the House, on being resumed, ordered, that"it should resolve itself into a Committee of the whole House, onMonday next, to take into consideration what is the proper manner ofputting questions by the Lords to the Judges, and of their answering thesame, in judicial proceedings. " The House did thereon resolve itselfinto a committee, from which the Earl of Galloway, on the 29th of thesame month, reported as follows:--"That the House has, in the trial ofWarren Hastings, Esquire, proceeded in a regular course, in the mannerof propounding their questions to the Judges in the Chamber ofParliament, 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 Househad proceeded, in this secret manner of propounding questions to theJudges and of receiving their answers, during the trial, and on mattersof debate between the parties, "in a regular course. " It does notassert that another course would not have been _as_ regular. It does notstate either judicial convenience, principle, or body of precedents forthat _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 29thof June, 1789, no one question has been admitted to go publicly to theJudges. 

This determined and systematic privacy was the more alarming to yourCommittee, because the questions did not (except in that case) originatefrom the Lords for the direction of their own conscience. Thesequestions, in some material instances, were not made or allowed by theparties at the bar, nor settled in open court, but differed materiallyfrom what your Managers contended was the true state of the question, asput and argued by them. They were such as the Lords thought proper tostate for them. Strong remonstrances produced some alteration in thisparticular; but even after these remonstrances, several questions weremade on statements which the Managers never made nor admitted. 

Your Committee does not know of any precedent before this, in which thePeers, on a proposal of the Commons, or of a less weighty person beforetheir court, to have the cases publicly referred to the Judges, andtheir arguments and resolutions delivered in their presence, absolutelyrefused. The very few precedents of such private reference on trialshave been made, as we have observed already, _sub silentio_, and withoutany observation from the parties. In the precedents we produce, thedetermination is accompanied with its reasons, and the publicity isconsidered as the clear, undoubted right of the parties. 

Your Committee, using their best diligence, have never been able to forma clear opinion upon the ground and principle of these decisions. Themere result, upon each case decided by the Lords, furnished them with nolight, from any principle, precedent, or foregone authority of law orreason, to guide them with regard to the next matter of evidence whichthey had to offer, or to discriminate what matter ought to be urged orto be set aside: your Committee not being able to divine whether theparticular evidence, which, upon a conjectural principle, they mightchoose to abandon, would not appear to this House, and to the judgingworld at large, to be admissible, and possibly decisive proof. In thesestraits, they had and have no choice, but either wholly to abandon theprosecution, and of consequence to betray the trust reposed in them bythis House, or to bring forward such matter of evidence as they arefurnished with from sure sources of authenticity, and which in theirjudgment, aided by the best advice they could obtain, is possessed of amoral aptitude juridically to prove or to illustrate the case which theHouse had given them, in charge. 

MODE OF PUTTING THE QUESTIONS. 

When your Committee came to examine into those private opinions of theJudges, they found, to their no small concern, that the mode both ofputting the questions to the Judges, and their answers, was still moreunusual and unprecedented than the privacy with which those questionswere given and resolved. 

This mode strikes, as we apprehend, at the vital privileges of theHouse. For, with the single exception of the first question put to theJudges in 1788, the case being stated, the questions are raiseddirectly, specifically, and by name, on those privileges: that is, _Whatevidence is it competent for the Managers of the House of Commons toproduce?_ We conceive that it was not proper, _nor justified by a singleprecedent_, 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 notcompetent for the House of Commons, or for any committee acting undertheir authority, to do or not to do, in any instance or respectwhatsoever. This new and unheard-of course can have no other effect thanto subject to the discretion of the Judges the Law of Parliament and theprivileges of the House of Commons, and in a great measure the judicialprivileges of the Peers themselves: any intermeddling in which on theirpart we conceive to be a dangerous and unwarrantable assumption ofpower. 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 whatthe Judges of former times have confessed to be their duty, on occasionsto which he refers in the time of Henry VI. And we are of opinion thatthe conduct of those sages of the law, and others their successors, whohave been thus diffident and cautious in giving their opinions uponmatters concerning Parliament, and particularly on the privileges of theHouse of Commons, was laudable in the example, and ought to be followed:particularly the principles upon which the Judges declined to give theiropinions in the year 1614. It appears by the Journals of the Lords, thata question concerning the law relative to impositions having been put tothe Judges, the proceeding was as follows. "Whether the Lords the Judgesshall be heard deliver their opinion touching the point of impositions, before further consideration be had of answer to be returned to thelower House concerning the message from them lately received. Whereuponthe number of the Lords requiring to hear the Judges' opinions by saying'_Content_' exceeding the others which said '_Non Content_, ' the Lordsthe Judges, so desiring, were permitted to withdraw themselves into theLord Chancellor's private rooms, where having remained awhile andadvised together, they returned into the House, and, having taken theirplaces, and standing discovered, did, by the mouth of the LordChief-Justice of the King's Bench, humbly desire to be forborne at thistime, in this place, to deliver any opinion in this case, for manyweighty and important reasons, which his Lordship delivered with greatgravity and eloquence; concluding that himself and his brethren are uponparticulars in judicial course to speak and judge between the King'sMajesty 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 ordesign, had a tendency to subject the law and course of Parliament tothe opinions of the Judges of the inferior courts, from that perioduntil the 1st of James II. The trial of Lord Delamere for high treasonwas had by special commission before the Lord High Steward: it wasbefore the act which directs that _all_ peers should be summoned to suchtrials. This was not a trial in full Parliament, in which case it wasthen 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 theLords were triers only, and had no vote in the judgment of law. This waslooked on as the course, where the trial was not in full Parliament, inwhich latter case there was no doubt but that the Lord High Steward madea part of the body of the triers, and that the whole House was thejudge. [32] In this cause, after the evidence for the Crown had beenclosed, the prisoner prayed the Court to adjourn. The Lord High Stewarddoubted his power to take that step in that stage of the trial; and thequestion was, "Whether, the trial not being in full Parliament, when theprisoner is upon his trial, and evidence for the King is given, theLords being (as it may be termed) charged with the prisoner, the Peersmay separate for a time, which is the consequence of an adjournment?"The Lord High Steward doubted of his power to adjourn the Court. Thecase was evidently new, and his Grace proposed to have the opinion ofthe Judges upon it. The Judges in consequence offering to withdraw intothe Exchequer Chamber, Lord Falconberg "insisted that the questionconcerned the privilege of the Peerage only, and conceived that _theJudges are not concerned to make any determination in that matter; andbeing such a point of privilege, certainly the inferior courts have noright to determine it_. " It was insisted, therefore, that the Lordstriers should retire with the Judges. The Lord High Steward thoughtdifferently, and opposed this motion; but finding the other opiniongenerally prevalent, he gave way, and the Lords triers retired, takingthe Judges to their consult. When the Judges returned, they deliveredtheir opinion in _open court_. Lord Chief-Justice Herbert spoke forhimself and the rest of the Judges. After observing on the novelty ofthe case, with a temperate and becoming reserve with regard to therights of Parliaments, he marked out the limits of the office of theinferior Judges on such occasions, and declared, --"_All that we, theJudges, can do is to acquaint your Grace and the noble Lords what thelaw is in the inferior courts in cases of the like nature_, and thereason of the law in those points, and _then leave the jurisdiction ofthe court to its proper judgment_. " The Chief-Justice concluded hisstatement of the usage below, and his observations on the difference ofthe cases of a peer tried in full Parliament and by a specialcommission, in this manner:--"Upon the whole matter, my Lords, whetherthe Peers being judges in the one and not in the other instance altersthe case, or whether the reason of the law in inferior courts why thejury are not permitted to separate until they have dischargedthemselves of their verdict may have any influence on this case, _wherethat reason seems to fail_, the prisoner being to be tried by men ofunquestionable honor, _we cannot presume so far as to make anydetermination, in a case which is both new to us and of greatconsequence in itself_; but think it the proper way for _us_, havinglaid matters as we conceive them before your Grace and my Lords, _tosubmit the jurisdiction of your own court to your own determination_. "

It appears to your Committee, that the Lords, who stood againstsubmitting the course of their high court to the inferior Judges, andthat the Judges, who, with a legal and constitutional discretion, declined giving any opinion in this matter, acted as became them; andyour Committee sees no reason why the Peers at this day should be lessattentive to the rights of their court with regard to an exclusivejudgment on their own proceedings or to the rights of the Commons actingas accusers for the whole commons of Great Britain in that court, or whythe Judges should be less reserved in deciding upon any of these pointsof high Parliamentary privilege, than the Judges of that and thepreceding periods. This present case is a proceeding in full Parliament, and not like the case under the commission in the time of James II. , andstill more evidently out of the province of Judges in the inferiorcourts. 

All the precedents previous to the trial of Warren Hastings, Esquire, seem to your Committee to be uniform. The Judges had constantly refusedto give an opinion on any of the powers, privileges, or competencies ofeither House. But in the present instance your Committee has found, withgreat concern, a further matter of innovation. Hitherto the constantpractice has been to put questions to the Judges but in the threefollowing ways: as, 1st, A question of pure abstract law, withoutreference 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 thecourse of proceeding in the courts below upon an abstract case. Besidesthese 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 ofLords, whether the prosecution has been by indictment, by informationfrom the Attorney-General, or by impeachment of the House of Commons. 

In the present trial, the Judges appear to your Committee not to havegiven their judgment on points of law, stated as such, but to have ineffect tried the cause, in the whole course of it, --with one instance tothe contrary. 

The Lords have stated no question of general law, no question on theconstruction of an act of Parliament, no question concerning thepractice of the courts below. _They put the whole gross case and matterin question, with all its circumstances, to the Judges. _ They have, _forthe first time_, demanded of them what particular person, paper, ordocument ought or ought not to be produced before them by the Managersfor the Commons of Great Britain: for instance, whether, under such anarticle, the Bengal Consultations of such a day, the examination ofRajah Nundcomar, and the like. The operation of this method is insubstance not only to make the Judges masters of the whole process andconduct of the trial, but through that medium to transfer to them theultimate judgment on the cause itself and its merits. 

The Judges attendant on the Court of Peers hitherto have not beensupposed 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 tothem; nor do we find that in fact any order has been made for thatpurpose, even supposing that the evidence could at all regularly be putbefore them. They are present in court, not to hear the trial, butsolely to advise in matter of law; they cannot take upon themselves tosay anything about the Bengal Consultations, or to know anything ofRajah 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 andtendency of thus putting the question, _specifically, and on the grosscase_, your Committee thinks fit here to insert one of those questions, reserving a discussion of its particular merits to another place. It wasstated on the 22d of April, 1790, "On that day the Managers proposed toshow that Kelleram fell into great balances with the East India Company, in consequence of his appointment. " It is so stated in the printedMinutes (p. 1206). But the real tendency and gist of the proposition isnot shown. However, the question was put, "Whether it be or be notcompetent _to the Managers for the Commons to give evidence upon thecharge in the sixth article, to prove_ that the rent [at?] which thedefendant, Warren Hastings, Esquire, let the lands mentioned in the saidsixth article of charge to Kelleram fell into arrear and was deficient;and whether, if proof were offered that the rent fell into arrearimmediately after the letting, the evidence in that case would becompetent?" The Judges answered, on the 27th of the said month, asfollows:--"_It is not competent for the Managers for the House ofCommons_ to give evidence upon the charge in the sixth article, to provethat the rent at which the defendant, Warren Hastings, let the lands[mentioned?] in the said sixth article of charge to Kelleram fell intoarrear and was deficient. "

The House will observe that on the question two cases of competence wereput: the first, on the competence of Managers for the House of Commonsto give the evidence supposed to be offered by them, but which we denyto have been offered in the manner and for the purpose assumed in thisquestion; the second is in a shape apparently more abstracted, and morenearly approaching to Parliamentary regularity, --on the competence ofthe evidence itself, in the case of a supposed circumstance beingsuperadded. The Judges answered only the first, denying flatly thecompetence of the Managers. As to the second, the competence of thesupposed evidence, they are profoundly silent. Having given this blow toour competence, about the other question, (which was more within theirprovince, ) namely, the competence of evidence on a case hypotheticallystated, they give themselves no trouble. The Lords on that occasionrejected the whole evidence. On the face of the Judges' opinion it is adetermination _on a case_, the trial of which was not with them, but itcontains _no rule or principle of law_, to which alone it was their dutyto speak. [33]

These essential innovations tend, as your Committee conceives, to makean entire alteration in the constitution and in the purposes of the HighCourt of Parliament, and even to reverse the ancient relations betweenthe Lords and the Judges. They tend wholly to take away from the Commonsthe benefit of making good their case before the proper judges, andsubmit this high inquest to the inferior courts. 

Your Committee sees no reason why, on the same principles andprecedents, the Lords may not terminate their proceedings in this, andin all future trials, by sending the whole body of evidence taken beforethem, in the shape of a special verdict, to the Judges, and may notdemand of them, whether they ought, on the whole matter, to acquit orcondemn the prisoner; nor can we discover any cause that should hinderthem [the Judges] from deciding on the accumulative body of the evidenceas hitherto they have done in its parts, and from dictating theexistence or non-existence of a misdemeanor or other crime in theprisoner as they think fit, without any more reference to principle orprecedent of law than hitherto they have thought proper to apply indetermining on the several parcels of this cause. 

Your Committee apprehends that very serious inconveniencies andmischiefs may hereafter arise from a practice in the House of Lords ofconsidering itself as unable to act without the judges of the inferiorcourts, of implicitly following their dictates, of adhering with aliteral precision to the very words of their responses, and putting themto decide on the competence of the Managers for the Commons, thecompetence of the evidence to be produced, who are to be permitted toappear, what questions are to be asked of witnesses, and indeed, parcelby parcel, on the whole of the gross case before them, --as well as todetermine upon the order, method, and process of every part of theirproceedings. The judges of the inferior courts are by law renderedindependent 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 (whichGod forbid!) the Commons should find it at any time hereafter necessaryto impeach them before the Lords, this House would find the Lordsdisabled in their functions, fearful of giving any judgment on matter oflaw or admitting any proof of fact without them [the Judges]; and havingonce assumed the rule of proceeding and practice below as their rule, they must at every instant resort, for their means of judging, to theauthority of those whom they are appointed to judge. 

Your Committee must always act with regard to men as they are. There areno privileges or exemptions from the infirmities of our common nature. We are sensible that all men, and without any evil intentions, willnaturally wish to extend their own jurisdiction, and to weaken all thepower by which they may be limited and controlled. It is the business ofthe House of Commons to counteract this tendency. This House had givento its Managers no power to abandon its privileges and the rights of itsconstituents. They were themselves as little disposed as authorized tomake this surrender. They are members of this House, not only chargedwith the management of this impeachment, but partaking of a generaltrust inseparable from the Commons of Great Britain in Parliamentassembled, one of whose principal functions and duties it is to beobservant of the courts of justice, and to take due care that none ofthem, from the lowest to the highest, shall pursue new courses, unknownto the laws and constitution, of this kingdom, or to equity, sound legalpolicy, or substantial justice. Your Committee were not sent intoWestminster Hall for the purpose of contributing in their persons, andunder the authority of the House, to change the course or law ofParliament, which had continued unquestioned for at least four hundredyears. Neither was it any part of their mission to suffer precedents tobe established, with relation to the law and rule of evidence, whichtended 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 prevailwhich would render a process in Parliament, not the terror, but theprotection, of all the fraud and violence arising from the abuse ofBritish power in the East. Accordingly, your Managers contended with alltheir might, as their predecessors in the same place had contended withmore ability and learning, but not with more zeal and more firmness, against those dangerous innovations, as they were successivelyintroduced: they held themselves bound constantly to protest, and in oneor two instances they did protest, in discourses of considerable length, against those private, and, for what they could find, unargued judicialopinions, which must, as they fear, introduce by degrees the miserableservitude 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 wefind in all cases implicitly adopted, in all their extent and withoutqualification, by the Lords, ) turned upon _evidence_. Your Committee, before the trial began, were apprised, by discourses which prudence didnot permit them to neglect, that endeavors would be used to embarrassthem in their proceedings by exceptions against evidence; that thejudgments and opinions of the courts below would be resorted to on thissubject; that there the rules of evidence were precise, rigorous, andinflexible; and that the counsel for the criminal would endeavor tointroduce the same rules, with the same severity and exactness, intothis trial. Your Committee were fully assured, and were resolvedstrenuously to contend, that no doctrine or rule of law, much less thepractice of any court, ought to have weight or authority in Parliament, further than as such doctrine, rule, or practice is agreeable to theproceedings in Parliament, or hath received the sanction of approvedprecedent there, or is founded on the immutable principles ofsubstantial justice, without which, your Committee readily agrees, nopractice in any court, high or low, is proper or fit to be maintained. 

In this preference of the rules observed in the High Court ofParliament, preëminently superior to all the rest, there is no claimmade 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, andsome of them very essentially; yet the usage of each court is the law ofthe 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 generalrule, the Court of King's Bench, on trials by jury, cannot receivedepositions, but must judge by testimony _vivâ voce_. The rule of theCourt of Chancery is not only not the same, but it is the reverse, andLord Hardwicke ruled accordingly. "The constant and establishedproceedings of this Court, " said this great magistrate, "are on writtenevidence, like the proceedings on the Civil and Canon Law. This is thecourse of the Court, and the course of the Court is the law of theCourt. "[34]

Your Managers were convinced that one of the principal reasons for whichthis cause was brought into Parliament was the danger that in inferiorcourts their rule would be formed naturally upon their ordinaryexperience, and the exigencies of the cases which in ordinary coursecame before them. This experience, and the exigencies of these cases, extend little further than the concerns of a people comparatively in anarrow vicinage, a people of the same or nearly the same language, religion, manners, laws, and habits: with them an intercourse of everykind 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 Britainby a very great part of the globe, --separated by manners, by principlesof religion, and of inveterate habits as strong as nature itself, stillmore than by the circumstance of local distance. Such confined andinapplicable rules would be convenient, indeed, to oppression, toextortion, bribery, and corruption, but ruinous to the people, whoseprotection is the true object of all tribunals and of all their rules. Even English judges in India, who have been sufficiently tenacious ofwhat they considered as the rules of English courts, were obliged inmany points, and particularly with regard to evidence, to relax veryconsiderably, as the civil and politic government has been obliged to doin several other cases, on account of insuperable difficulties arisingfrom a great diversity of manners, and from what may be considered as adiversity even in the very constitution of their minds, --instances ofwhich your Committee will subjoin in a future Appendix. 

Another great cause why your Committee conceived this House had chosento proceed in the High Court of Parliament was because the inferiorcourts were habituated, with very few exceptions, to try men for theabuse only of their individual and natural powers, which can extend buta little way. [35] Before them, offences, whether of fraud or violence orboth, are, for much the greater part, charged upon persons of mean andobscure condition. Those unhappy persons are so far from being supportedby men of rank and influence, that the whole weight and force of thecommunity is directed against them. In this case, they are in generalobjects of protection as well as of punishment; and the course perhapsought, as it is _commonly_ said to be, not to suffer anything to beapplied to their conviction beyond what the strictest rules will permit. But in the cause which your Managers have in charge the circumstancesare the very reverse to what happens in the cases of mere personaldelinquency which come before the [inferior] courts. These courts havenot before them persons who act, and who justify their acts, by thenature of a despotical and arbitrary power. The abuses stated in ourimpeachment are not those of mere individual, natural faculties, but theabuses of civil and political authority. The offence is that of one whohas carried with him, in the perpetration of his crimes, whether ofviolence or of fraud, the whole force of the state, --who, in theperpetration and concealment of offences, has had the advantage of allthe means and powers given to government for the detection andpunishment of guilt and for the protection of the people. The peoplethemselves, on whose behalf the Commons of Great Britain take up thisremedial and protecting prosecution, are naturally timid. Their spiritsare broken by the arbitrary power usurped over them, and claimed by thedelinquent as his law. They are ready to flatter the power which theydread. They are apt to look for favor [from their governors] by coveringthose vices in the predecessor which they fear the successor may bedisposed to imitate. They have reason to consider complaints as means, not of redress, but of aggravation to their sufferings; and when theyshall ultimately hear that the nature of the British laws and the rulesof its tribunals are such as by no care or study either they, or eventhe Commons of Great Britain, who take up their cause, can comprehend, but which in effect and operation leave them unprotected, and renderthose who oppress them secure in their spoils, they must think stillworse of British justice than of the arbitrary power of the Company'sservants which hath been exercised to their destruction. They will beforever, what for the greater part they have hitherto been, inclined tocompromise with the corruption of the magistrates, as a screen againstthat violence from which the laws afford them no redress. 

For these reasons your Committee did and do strongly contend that theCourt of Parliament ought to be open with great facility to theproduction of all evidence, except that which the precedents ofParliament teach them authoritatively to reject, or which hath no sortof natural aptitude directly or circumstantially to prove the case. Theyhave been and are invariably of opinion that the Lords ought _toenlarge, and not to contrast, the rules of evidence, according to thenature and difficulties of the case_, for redress to the injured, forthe punishment of oppression, for the detection of fraud, --and aboveall, to prevent, what is the greatest dishonor to all laws and to alltribunals, the failure of justice. To prevent the last of these evilsall courts in this and all countries have constantly made all theirmaxims and principles concerning testimony to conform; although suchcourts have been bound undoubtedly by stricter rules, both of form andof prescript cases, than the sovereign jurisdiction exercised by theLords on the impeachment of the Commons ever has been or ever ought tobe. Therefore your Committee doth totally reject any rules by which thepractice of any inferior court is affirmed as a directory guide to anhigher, especially where the forms and the powers of the judicature aredifferent, and the objects of judicial inquiry are not the same. 

Your Committee conceives that the trial of a cause is not in thearguments or disputations of the prosecutors and the counsel, but in_the evidence_, and that to refuse evidence is to refuse to hear thecause: nothing, therefore, but the most clear and weighty reasons oughtto preclude its production. Your Committee conceives, that, whenevidence on the face of it relevant, that is, connected with the partyand the charge, was denied to be competent, _the burden lay upon thosewho opposed it_ to set forth the authorities, whether of positivestatute, known recognized maxims and principles of law, passages in anaccredited institute, code, digest, or systematic treatise of laws, orsome adjudged cases, wherein, the courts have rejected evidence of thatnature. No such thing ever (except in one instance, to which we shallhereafter speak) was produced at the bar, nor (that we know of) producedby the Lords in their debates, or by the Judges in the opinions by themdelivered. Therefore, for anything which as yet appears to yourCommittee to the contrary, these responses and decisions were, in manyof the points, not the determinations of any law whatsoever, but merearbitrary decrees, to which we could not without solemn protestation, submit. 

Your Committee, at an early period, and frequently since thecommencement of this trial, have neglected no means of research whichmight afford them information concerning these supposed strict andinflexible rules of proceeding and of evidence, which, appeared to them, destructive of all the means and ends of justice: and, first, theyexamined carefully the Rolls and Journals of the House of Lords, as alsothe printed trials of cases before that court. 

Your Committee finds but one instance, in the whole course ofParliamentary impeachments, in which evidence offered by the Commons hasbeen rejected on the plea of inadmissibility or incompetence. This wasin the case of Lord Strafford's trial; when the copy of a warrant (thesame not having any attestation to authenticate it as a true copy) was, on deliberation, not admitted, --and your Committee thinks, as the casestood, with reason. But even in this one instance the Lords seemed toshow a marked anxiety not to narrow too much the admissibility ofevidence; for they confined their determination "to this individualcase, " as the Lord Steward reported their resolution; and headds, --"They conceive this could be no impediment or failure in theproceeding, because the truth and verity of it would depend on the firstgeneral power given to execute it, which they who manage the evidencefor the Commons say they could prove. "[36] Neither have objections toevidence offered by the prisoner been very frequently made, nor oftenallowed when made. In the same case of Lord Strafford, two booksproduced by his Lordship, without proof by whom they were written, wererejected, (and on a clear principle, ) "as being private books, and norecords. "[37] On both these occasions, the questions were determined bythe Lords alone, without any resort to the opinions of the Judges. Inthe impeachments of Lord Stafford, Dr. Sacheverell, and Lord Wintoun, noobjection to evidence appears in the Lords' Journals to have beenpressed, and not above one taken, which was on the part of the Managers. 

Several objections were, indeed, taken to evidence in LordMacclesfield's trial. [38] They were made on the part of the Managers, except in two instances, where the objections were made by the witnessesthemselves. They were all determined (those started by the Managers intheir favor) by the Lords themselves, without any reference to theJudges. In the discussion of one of them, a question was stated for theJudges concerning the law in a similar case upon an information in thecourt below; but it was set aside by the previous question. [39]

On the impeachment of Lord Lovat, no more than one objection to evidencewas taken by the Managers, against which Lord Lovat's counsel were notpermitted to argue. Three objections on the part of the prisoner weremade to the evidence offered by the Managers, but all withoutsuccess. [40] The instances of similar objections in Parliamentary trialsof peers on indictments are too few and too unimportant to require beingparticularized;--one, that in the case of Lord Warwick, has beenalready stated. 

The principles of these precedents do not in the least affect any caseof evidence which your Managers had to support. The paucity andinapplicability of instances of this kind convince your Committee thatthe Lords have ever used some latitude and liberality in all the meansof 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, manycases should occur (except those where a personal _vivâ voce_ witness isdenied to be competent) in which a judge, possessing an entire judicialcapacity, can determine by anticipation what is good evidence, and whatnot, before he has heard it. When he has heard it, of course he willjudge what weight it is to have upon his mind, or whether it ought notentirely to be struck out of the proceedings. 

Your Committee, always protesting, as before, against the admission ofany law, foreign or domestic, as of authority in Parliament, furtherthan as written reason and the opinion of wise and informed men, hasexamined into the writers on the Civil Law, ancient and more recent, inorder to discover what those rules of evidence, in any sort applicableto criminal cases, were, which were supposed to stand in the way of thetrial of offences committed in India. 

They find that the term Evidence, _Evidentia_, from whence ours istaken, has a sense different in the Roman law from what it is understoodto bear in the English jurisprudence; the term most nearly answering toit in the Roman being _Probatio_, Proof, which, like the term_Evidence_, is a generic term, including everything by which a doubtfulmatter may be rendered more certain to the judge: or, as Gilbertexpresses it, every matter is evidence which amounts to the proof of thepoint in question. [41]

On the general head of Evidence, or Proof, your Committee finds thatmuch has been written by persons learned in the Roman law, particularlyin modern times, --and that many attempts have been made to reduce torules the principles of evidence or proof, a matter which by its verynature seems incapable of that simplicity, precision, and generalitywhich are necessary to supply the matter or to give the form to a ruleof law. Much learning has been employed on the doctrine of indicationsand presumptions in their books, --far more than is to be found in ourlaw. Very subtle disquisitions were made on all matters of jurisprudencein the times of the classical Civil Law, by the followers of the Stoicschool. [42] In the modern school of the same law, the same course wastaken by Bartolus, Baldus, and the Civilians who followed them, beforethe complete revival of literature. [43] All the discussions to be foundin those voluminous writings furnish undoubtedly an useful exercise tothe mind, by methodizing the various forms in which one set of facts orcollection of facts, or the qualities or demeanor of persons, reciprocally influence each other; and by this course of juridicaldiscipline they add to the readiness and sagacity of those who arecalled to plead or to judge. But as human affairs and human actions arenot of a metaphysical nature, but the subject is concrete, complex, andmoral, they cannot be subjected (without exceptions which reduce italmost to nothing) to any certain rule. Their rules with regard tocompetence were many and strict, and our lawyers have mentioned it totheir reproach. "The Civilians, " it has been observed, "differ innothing more than admitting evidence; for they reject _histriones_, &c. , and whole tribes of people. "[44] But this extreme rigor as tocompetency, 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 andinflexible maxims, the best Roman lawyers, in their best ages, wereobliged to confess that every case of evidence rather formed its ownrule than that any rule could be adapted to every case. The bestopinions, however, seem to have reduced the admissibility of witnessesto a few heads. "For if, " said Callistratus, in a passage preserved tous in the Digest, "the testimony is free from suspicion, either onaccount of the quality of the _person_, namely, that he is in areputable situation, or for _cause_, that is to say, that the testimonygiven is not for reward nor favor nor for enmity, such a witness isadmissible. " This first description goes to _competence_, between whichand _credit_ Lord Hardwicke justly says the discrimination is very nice. The other part of the text shows their anxiety to reduce credibilityitself to a fixed rule. It proceeds, therefore, --"His Sacred Majesty, Hadrian, issued a rescript to Vivius Varus, Lieutenant of Cilicia, tothis effect, that he who sits in judgment is the most capable ofdetermining what credit is to be given to witnesses. " The words of theletter of rescript are as follow:--"You ought best to know what creditis to be given to witnesses, --who, and of what dignity, and of whatestimation they are, --whether they seem to deliver their evidence withsimplicity and candor, whether they seem to bring a formed andpremeditated discourse, or whether on the spot they give probable matterin answer to the questions that are put to them. " And there remains arescript of the same prince to Valerius Verus, on the bringing out thecredit of witnesses. This appears to go more to the _general_ principlesof evidence. It is in these words:--"What evidence, and in what measureor degree, shall amount to proof in each case can be defined in nomanner whatsoever that is sufficiently certain. For, though not always, yet frequently, the truth of the affair may appear without any matter ofpublic record. In some cases the number of the witnesses, in otherstheir dignity and authority, is to be weighed; in others, concurringpublic 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 mydetermination: that you ought not too readily to bind yourself to trythe cause upon any one description of evidence; but you are to estimateby your own discretion what you ought to credit, or what appears to younot to be established by proof sufficient. "[45]

The modern writers on the Civil Law have likewise much matter on thissubject, and have introduced a strictness with regard to personaltestimony which our particular jurisprudence has not thought it at allproper to adopt. In others we have copied them more closely. They divideEvidence 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 laboredparticularly 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 largea part with them and with us in the trial of all causes, andparticularly criminal causes) is extremely difficult to ascertain, either with regard to what shall be considered as exclusively creatingany of these three degrees of presumption, or what facts, and howproved, and what marks and tokens, may serve to establish them, eventhose Civilians whose character it is to be subtle to a fault have beenobliged to abandon the task, and have fairly confessed that the laborsof 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 lawhave written nothing of value concerning presumptions; nor is thesubject-matter such as to be reduced within the prescribed limit of anycertain rules. In truth, it is from the actual existing case, and fromthe circumstances of the persons and of the business, that we ought(under the guidance of an incorrupt judgment of the mind, which iscalled an equitable discretion) to determine what presumptions orconjectural proofs are to be admitted as rational or rejected as false, or on which the understanding can pronounce nothing, either the one wayor the other. "

It is certain, that, whatever over-strictness is to be found in theolder writers on this law with regard to evidence, it chiefly related tothe mere competency of witnesses; yet even here the rigor of the Romanlawyers relaxed on the necessity of the case. Persons who kept houses ofill-fame were with them incompetent witnesses; yet among the maxims ofthat law the rule is well known of _Testes lupanares in re lupanari_. 

In ordinary cases, they require two witnesses to prove a fact; andtherefore they held, "that, if there be but one witness, and no probablegrounds of presumption of some kind (_nulla argumenta_), that onewitness is by no means to be heard"; and it is not inelegantly said inthat case, _Non jus deficit, sed probatio_, "The failure is not in thelaw, but in the proof. " But if other grounds of presumption appear, onewitness is to be heard: "for it is not necessary that one crime shouldbe established by one sort of proof only, as by witnesses, or bydocuments, or by presumptions; all the modes of evidence may be soconjoined, that, where none of them alone would affect the prisoner, allthe various concurrent proofs should overpower him like a storm ofhail. " This is held particularly true in cases where crimes are secret, and detection difficult. The necessity of detecting and punishing suchcrimes superseded, in the soundest authors, this theoretic aim atperfection, and obliged technical science to submit to practicalexpedience. "_In re criminali_, " said the rigorists, "_probationesdebent esse evidentes et luce meridiana clariores_": and so undoubtedlyit is in offences which admit such proof. But reflection taught themthat even their favorite rules of incompetence must give way to theexigencies of distributive justice. One of the best modern writers onthe Imperial Criminal Law, particularly as practised in Saxony, (Carpzovius, ) says, --"This alone I think it proper to remark, that evenincompetent witnesses are sometimes admitted, if otherwise the truthcannot be got at; and this particularly in facts and crimes which are ofdifficult proof"; and for this doctrine he cites Farinacius, Mascardus, and other eminent Civilians who had written on Evidence. He proceedsafterwards, --"However, this is to be taken with a caution, that theimpossibility of otherwise discovering the truth is not construed fromhence, that other witnesses were not actually concerned, but that, fromthe nature of the crime, or from regard had to the place and time, otherwitnesses could not be present. " Many other passages from the sameauthority, and from others to a similar effect, might be added; weshall only remark shortly, that Gaill, a writer on the practice of thatlaw the most frequently cited in our own courts, gives the rule more inthe form of a maxim, --"that the law is contented with such proof as_can_ be made, if the subject _in its nature_ is difficult ofproof. "[48] And the same writer, in another passage, refers to anotherstill more general maxim, (and a sound maxim it is, ) that the power andmeans of proof ought not to be narrowed, but enlarged, that the truthmay not be concealed: "_Probationum facultas non angustari, sed ampliaridebeat, ne veritas occultetur. _"[49]

On the whole, your Committee can find nothing in the writings of thelearned in this law, any more than they could discover anything in theLaw of Parliament, to support any one of the determinations given by theJudges, and adopted by the Lords, against the evidence which yourCommittee offered, whether direct and positive, or merely (as for thegreater part it was) circumstantial, and produced as a ground to formlegitimate presumption against the defendant: nor, if they were to admit(which they do not) this Civil Law to be of authority in furnishing anyrule in an impeachment of the Commons, more than as it may occasionallyfurnish a principle of reason on a new or undetermined point, do theyfind any rule or any principle, derived from that law, which could orought to have made us keep back the evidence which we offered; on thecontrary, we rather think those rules and principles to be in agreementwith our conduct. 

As to the Canon Law, your Committee, finding it to have adopted theCivil Law with no very essential variation, does not feel it necessaryto make any particular statement on that subject. 

Your Committee then came to examine into the authorities in the Englishlaw, both as it has prevailed for many years back, and as it has beenrecently received in our courts below. They found on the whole the rulesrather less strict, more liberal, and less loaded with positivelimitations, than in the Roman law. The origin of this latitude mayperhaps be sought in this circumstance, which we know to have relaxedthe rigor of the Roman law: courts in England do not judge uponevidence, _secundum allegata et probata_, as in other countries andunder other laws they do, but upon verdict. By a fiction of law theyconsider the jury as supplying, in some sense, the place of testimony. One witness (and for that reason) is allowed sufficient to convict, incases 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 oftechnical rules has been more observed than at present it is. In themore early ages, as the minds of the Judges were in general lessconversant in the affairs of the world, as the sphere of theirjurisdiction was less extensive, and as the matters which came beforethem were of less variety and complexity, the rule being in generalright, not so much inconvenience on the whole was found from a literaladherence to it as might have arisen from an endeavor towards a liberaland equitable departure, for which further experience, and a morecontinued cultivation of equity as a science, had not then so fullyprepared them. In those times that judicial policy was not to becondemned. We find, too, that, probably from the same cause, most oftheir doctrine leaned towards the restriction; and the old lawyers beingbred, according to the then philosophy of the schools, in habits ofgreat subtlety and refinement of distinction, and having once taken thatbent, very great acuteness of mind was displayed in maintaining everyrule, every maxim, every presumption of law creation, and every fictionof law, with a punctilious exactness: and this seems to have been thecourse which laws have taken in every nation. [50] It was probably fromthis rigor, and from a sense of its pressure, that, at an early periodof our law, far more causes of criminal jurisdiction were carried intothe House of Lords and the Council Board, where laymen were judges, thancan or ought to be at present. 

As the business of courts of equity became more enlarged and moremethodical, --as magistrates, for a long series of years, presided in theCourt of Chancery, who were not bred to the Common Law, --as commerce, with its advantages and its necessities, opened a communication morelargely with other countries, --as the Law of Nature and Nations (alwaysa part of the law of England) came to be cultivated, --as an increasingempire, as new views and new combinations of things were opened, --thisantique rigor and overdone severity gave way to the accommodation ofhuman concerns, for which rules were made, and not human concerns tobend 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 atthe bar, and with the aid of all the learning on the bench, both benchand bar being then supplied with men of the first form, declared fromthe bench, and in concurrence with the rest of the Judges, and with themost learned of the long robe, the able council on the side of the oldrestrictive principles making no reclamation, "that the judges and sagesof the law have laid it down that there is but ONE general rule ofevidence, --_the best that the nature of the case will admit_. "[51] This, then, the master rule, that governs all the subordinate rules, does inreality subject itself and its own virtue and authority _to the natureof the case_, and leaves no rule at all of an independent, abstract, andsubstantive quality. Sir Dudley Ryder, (then Attorney-General, afterwards Chief-Justice, ) in his learned argument, observed, that "itis extremely proper that there should be _some_ general rules inrelation to evidence; but _if exceptions were not allowed to them, itwould be better to demolish all the general rules_. There is no generalrule without exception that we know of but this, --that _the bestevidence shall be admitted which the nature of the case will afford_. Iwill show that rules as general as this are broke in upon _for the sakeof allowing evidence_. There is no rule that seems more binding thanthat a man shall not be admitted an evidence in his own case, and yetthe Statute of Hue and Cry is an exception. A man's books are allowedto 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 abrewer's servants. Another general rule, that a wife cannot be witnessagainst her husband, has been broke in upon in cases of treason. Anotherexception to the general rule, that a man may not be examined withoutoath, --the last words of a dying man are given in evidence in the caseof murder. " Such are the doctrines of this great lawyer. 

Chief-Justice Willes concurs with Lord Hardwicke as to dispensing withstrict rules of evidence. "Such evidence, " [he says, ] "is to be admittedas the _necessity_ of the case will allow of: as, for instance, amarriage at Utrecht, certified under the seal of the minister there, andof the said town, and that they cohabited together as man and wife, washeld 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 thisnotion, though advanced by so great a man, is contrary to religion, common sense, and common humanity, and I think the devils, to whom hehas delivered them, could not have suggested anything worse. "Chief-Justice Willes, admitting Lord Coke to be a great lawyer, thenproceeds in very strong terms, and with marks of contempt, to condemn"_his narrow notions_"; and he treats with as little respect or decorumthe ancient authorities referred to in defence of such notions. 

The principle of the departure from those rules is clearly fixed by LordHardwicke; he lays it down as follows:--"The first ground judges havegone upon, in departing from strict rules, is _absolute strictnecessity_; 2dly, a _presumed_ necessity. " Of the first he gives theseinstances:--"In the case of writings subscribed by witnesses, if all aredead, the proof of one of their hands is sufficient to establish thedeed. 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 athing the law abhors, to admit the memory of man for evidence. " Thisenlargement through two stages of proof, both of them contrary to therule of law, and both abhorrent from its principles, are by this greatjudge accumulated upon one another, and are admitted from _necessity_, to accommodate human affairs, and to prevent that which courts are byevery possible means instituted to prevent, --A FAILURE OF JUSTICE. Andthis necessity is not confined within the strict limits of physicalcauses, but is more lax, and takes in _moral and even presumed andargumentative necessity_, a necessity which is in fact nothing more thana great degree of expediency. The law creates a fictitious necessityagainst the rules of evidence in favor of the convenience of trade: anexception which on a similar principle had before been admitted in theCivil Law, as to mercantile causes, in which the books of the party werereceived 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'sbooks" (that is, the acts of the party interested himself) "are admittedas evidence, though no _absolute necessity_, but by reason of a_presumption_ of necessity only, _inferred_ from the nature ofcommerce. " "No rule, " continued Lord Hardwicke, "can be more settledthan that testimony is not to be received but upon oath"; but he lays itdown, that an oath itself may be dispensed with. "There is anotherinstance, " says he, "where the lawful oath may be dispensed with, --whereour 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 generalrule, " says he, "than that hearsay cannot be admitted, nor husband andwife as witnesses against each other; and yet it is _notorious_ thatfrom necessity they have been allowed, --not an _absolute_ necessity, buta _moral_ one. "

It is further remarkable, in this judicial argument, that exceptions areallowed not only to rules of evidence, but that the rules of evidencethemselves are not altogether the same, where the subject-matter varies. The Judges have, to facilitate justice, and to favor commerce, evenadopted the rules of _foreign_ laws. They have taken for granted, andwould not suffer to be questioned, the regularity and justice of theproceedings of foreign courts; and they have admitted them as evidence, not only of the fact of the decision, but of the right as to itslegality. "Where there are foreign parties interested, and in commercialmatters, the rules of evidence are not quite the same as in otherinstances in courts of justice: the case of Hue and Cry, Brownlow, 47. Afeme covert is not a lawful witness against her husband, except in casesof treason, but has been admitted in civil cases. [53] The testimony ofa public notary is evidence by the law of France: contracts are madebefore a public notary, and no other witness necessary. I should thinkit would be no doubt at all, if it came in question here, whether thiswould be a valid contract, but a testimony from persons of that creditand reputation would be received as a very good proof in foreigntransactions, and would authenticate the contract. "[54]

These cases show that courts always govern themselves by these rules incases of foreign transactions. To this principle Lord Hardwicke accords;and enlarging the rule of evidence by the nature of the subject and theexigencies of the case, he lays it down, "that it is a common and_natural_ presumption, that persons of the Gentoo religion should beprincipally apprised of facts and transactions in their own country. Asthe English have only a factory in this country, (for it is in theempire of the Great Mogul, ) if we should admit this evidence [Gentooevidence on a Gentoo oath], it would be agreeable to the genius of thelaw of England. " For this he cites the proceedings of our Court ofAdmiralty, and adopts the author who states the precedent, "that thisCourt will give credit to the sentence of the Court of Admiralty inFrance, and take it to be according to right, and will not examine theirproceedings: for it would be found very inconvenient, if one kingdomshould, by peculiar laws, correct the judgments and proceedings ofanother kingdom. " Such is the genius of the law of England, that thesetwo principles, of the general moral necessities of things, and thenature of the case, overrule every other principle, even those ruleswhich seem the very strongest. Chief-Baron Parker, in answer to anobjection made against the infidel deponent, "that the plaintiff oughtto have shown that he could not have the evidence of Christians, " says, "that, repugnant to natural justice, in the Statute of Hue and Cry, therobbed is admitted to be witness of the robbery, as _a moral or presumednecessity is sufficient_. " The same learned magistrate, pursuing hisargument in favor of liberality, in opening and enlarging the avenues tojustice, does not admit that "the authority of one or two cases" isvalid against reason, equity, and convenience, the vital principles ofthe law. He cites Wells _v. _ Williams, 1 Raymond, 282, to show that thenecessity 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 lookedupon as enemies, but now commerce has taught the world more humanity;and therefore held that an alien enemy, commorant here by the license ofthe King, and under his protection, may maintain a debt upon a bond, though he did not come with safe-conduct. " So far Parker, concurringwith 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 tobe done. " The answer is, "_The law of England is not confined toparticular cases, but is much more governed by reason than by any onecase whatever. _ The true rule is laid down by Lord Vaughan, fol. 37, 38. 'Where the law, ' saith he, 'is _known and clear_, the Judges mustdetermine as the law is, without regard to the inequitableness orinconveniency: these defects, if they happen in the law, can only beremedied by Parliament. But where the law is doubtful and not clear, theJudges 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 LordChief-Justice Lee considered in the same ruling light, not only asguides in matter of interpretation concerning law in general, but inparticular as controllers of the whole law of evidence, which, beingartificial, and made for convenience, is to be governed by thatconvenience for which it is made, and is to be wholly subservient to thestable principles of substantial justice, "I do apprehend, " said thatChief-Justice, "that the rules of evidence are to be considered as_artificial_ rules, framed by men for _convenience in courts ofjustice_. This is a case that ought to be looked upon in that light; andI take it that considering evidence in this way [viz. According tonatural justice] _is agreeable to the genius of the law of England_. "

The sentiments of Murray, then Solicitor-General, afterwards LordMansfield, are of no small weight in themselves, and they are authorityby being judicially adopted. His ideas go to the growing melioration ofthe law, by making its liberality keep pace with the demands of justiceand the actual concerns of the world: not restricting the infinitelydiversified occasions of men and the rules of natural justice withinartificial circumscriptions, but conforming our jurisprudence to thegrowth of our commerce and of our empire. This enlargement of ourconcerns he appears, in the year 1744, almost to have foreseen, and helived to behold it. "The arguments on the other side, " said that greatlight of the law, (that is, arguments against admitting the testimony inquestion from the novelty of the case, ) "prove nothing. Does it followfrom thence, that no witnesses can be examined in a case that neverspecifically existed before, or that an action cannot be brought in acase that never happened before? _Reason_ (being stated to be the firstground of all laws by the author of the book called 'Doctor andStudent') must determine the case. Therefore the only question is, Whether, _upon principles of reason, justice, and convenience_, thiswitness be admissible? Cases in law depend upon the _occasions_ whichgave rise to them. All occasions do not arise at once: now a particularspecies of Indians appears; hereafter another species of Indians mayarise. A statute can seldom take in all cases. Therefore the Common Law, that works itself pure by rules drawn from the fountain of justice, isfor 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 useLord Mansfield's expression) by rules drawn from the fountain ofjustice. "General rules, " said the same person, when he sat upon thebench, "are wisely established for attaining justice with ease, certainty, and dispatch; but the great end of them being _to dojustice_, the Court will see that it be really obtained. The courts havebeen more liberal of late years in their determinations, and have moreendeavored to attend to the _real justice_ of the case than formerly. "On another occasion, of a proposition for setting aside a verdict, hesaid, "This seems to be the true way to come at justice, and what wetherefore ought to do; for the true text is, _Boni judicis est ampliarejustitiam_ (not _jurisdictionem_, as has been often cited). "[56] Inconformity to this principle, the supposed rules of evidence have, inlate times and judgments, instead of being drawn to a greater degree ofstrictness, been greatly relaxed. 

"_All evidence is according to the subject-matter to which it isapplied. _ There is a great deal of difference between length of timethat operates as a bar to a claim and that which is used only by way ofevidence. Length of time used merely by way of evidence may be left tothe consideration of the jury, to be credited or not, or to draw theirinferences one way or the other, according to circumstances. _I do notknow an instance in which proof may not be supplied. _"[57] In all casesof 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, hethought "it clear that the Judges ought to lean _against_ objections tothe formality. "[59]

Lord Hardwicke had before declared, with great truth, "that theboundaries of what goes to the credit and what to the competency _arevery nice, and the latter carried too far_"; and in the same case hesaid, "that, unless the objection appeared to him to carry a strongdanger of perjury, and some apparent advantage might accrue to thewitness, he was always inclined to let it go to his credit, only _inorder to let in a proper light to the case, which would otherwise beshut out_; and _in a doubtful case_, he said, it was generally hiscustom _to admit the evidence_, and give such directions to the jury asthe nature of the case might require. "[60]

It is a known rule of evidence, that an interest in the matter to besupported by testimony disqualifies a witness; yet Lord Mansfield held, "that _nice_ objections to a remote interest which could not be paid orreleased, though they held in other cases, were not allowed todisqualify a witness to a will, as parishioners might have [prove?] adevise to the use of the poor of the parish forever. " He went stillnearer, and his doctrine tends so fully to settle the principles ofdeparture from or adherence to rules of evidence, that your Committeeinserts part of the argument at large. "The disability of a witness frominterest is very different from a positive incapacity. If a deed must beacknowledged before a judge or notary public, every other person isunder a positive incapacity to authenticate it; but objections ofinterest are deductions from natural reason, and proceed upon apresumption of too great a bias in the mind of the witness, and thepublic utility of rejecting partial testimony. Presumptions stand nolonger than till the contrary is proved. The presumption of bias may betaken off by showing the witness has a [as?] great or a greaterinterest the other way, or that he has given it up. The presumption ofpublic utility may be answered by showing that it would be veryinconvenient, under the particular circumstances, not to receive suchtestimony. Therefore, from the course of business, necessity, and otherreasons of expedience, _numberless exceptions_ are allowed to the_general_ rule. "[61]

These being the principles of the latter jurisprudence, the Judges havesuffered no positive rule of evidence to counteract those principles. They have even suffered subscribing witnesses to a will which recitesthe soundness of mind in the testator to be examined to prove hisinsanity, and then the court received evidence to overturn thattestimony and to destroy the credit of those witnesses. They were fivein number, who attested to a will and codicil. They were admitted toannul the will they had themselves attested. Objections were taken tothe competency of one of the witnesses in support of the will againstits subscribing witnesses: 1st, That the witness was an executor intrust, 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 fordamages incurred by the sale of the deceased's chambers to a Mr. Frederick. Mr. Frederick offered to submit to a rule to release, for thesake of public justice. Those who maintained the objection citedSiderfin, a reporter of much authority, 51, 115, and 1st Keble, 134. Lord Mansfield, Chief-Justice, did not controvert those authorities; butin the course of obtaining substantial justice he treated both of themwith equal contempt, though determined by judges of high reputation. His words are remarkable: "We do not _now_ sit here to take our rules ofevidence from Siderfin and Keble. " He overruled the objection upon morerecent authorities, which, though not in similar circumstances, heconsidered as within the reason. The Court did not think it necessarythat the witness should release, as he had offered to do. "It appearedon this trial, " says Justice Blackstone, "that a black conspiracy wasformed to set aside the gentleman's will, without any foundationwhatever. " A prosecution against three of the testamentary witnesses wasrecommended, who were afterwards convicted of perjury. [62] Had strictformalities with regard to evidence been adhered to in any part of thisproceeding, that very black conspiracy would have succeeded, and thoseblack 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, withregard to precedents. His opinion was against the reason and equity ofthe supposed practice, but he supposed himself not at liberty to giveway to his own wishes and opinions. On discovering his error, heconsidered himself as freed from an intolerable burden, and hastened toundo his former determination. "There are no precedents, " said he, withsome exultation, "which stand in the way of our determining _liberally_, _equitably_, and according to the _true_ intention of the parties. " Inthe same case, his learned assessor, Justice Wilmot, felt the samesentiments. His expressions are remarkable:--"Courts of law ought toconcur with courts of equity in the execution of those powers which arevery convenient to be inserted in settlements; and they ought not tolisten to nice distinctions that savor of the schools, but to be guidedby true good sense and manly reason. After the Statute of Uses, it ismuch to be lamented that the courts of Common Law had not adopted allthe rules and maxims of courts of equity. This would have prevented theabsurdity of receiving costs in one court and paying them inanother. "[63]

Your Committee does not produce the doctrine of this particular case asdirectly applicable to their charge, no more than several of the othershere cited. We do not know on what precedents or principles the evidenceproposed by us has been deemed inadmissible by the Judges; thereforeagainst the grounds of this rejection we find it difficult directly tooppose anything. These precedents and these doctrines are brought toshow the general temper of the courts, their growing liberality, and thegeneral tendency of all their reasonings and all their determinations toset aside all such technical subtleties or formal rules, which mightstand in the way of the discovery of truth and the attainment ofjustice. The cases are adduced for the principles they contain. 

The period of the cases and arguments we have cited was that in whichlarge and liberal principles of evidence were more declared, and moreregularly brought into system. But they had been gradually improving;and there are few principles of the later decisions which are not to befound in determinations on cases prior to the time we refer to. Not tooverdo this matter, and yet to bring it with some degree of clearnessbefore the House, your Committee will refer but to a few authorities, and those which seem most immediately to relate to the nature of thecause intrusted to them. In Michaelmas, 11 Will. III. , the King _v. _ theWarden of the Fleet, a witness, who had really been a prisoner, andvoluntarily suffered to escape, was produced to prove the escape. To thewitness 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. Histestimony was allowed; and by the Court, among other things, it wassaid, in secret transactions, if any of the parties concerned are not tobe, for the necessity of the third, admitted as evidence, it will beimpossible to detect the practice: as in cases of the Statute of Hue andCry, the party robbed shall be a witness to charge the hundred; and inthe case of Cooke _v. _ Watts in the Exchequer, where one who had beenprejudiced 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 admittedas a witness for _fraudulently_ drawing her in, when sole, to give awarrant of attorney for confessing a judgment on an unlawfulconsideration, whereby execution was sued out against her husband, andHolt, Chief-Justice, held that a feme covert could not, by law, be awitness to convict one on an information; yet, in Lord Audley's case, itbeing a rape on her person, she was received to give evidence againsthim, and the Court concurred with him, because it was the best evidencethe nature of the thing would allow. This decision of Holt refers toothers more early, and all on the same principle; and it is not of thisday that this one great principle of eminent public expedience, thismoral necessity, "that crimes should not escape with impunity, "[66] hasin all cases overborne all the common juridical rules of evidence, --ithas even prevailed over the first and most natural construction of actsof 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 fairgrounds to straiten proofs, require two witnesses in cases of hightreason. So it was understood, without dispute and without distinction, until the argument of a case in the High Court of Justice, during theUsurpation. It was the case of the Presbyterian minister, Love, triedfor high treason against the Commonwealth, in an attempt to restore theKing. In this trial, it was contended for, and admitted, that onewitness to one overt act, and one to another overt act of the sametreason, ought to be deemed sufficient. [67] That precedent, thoughfurnished in times from which precedents were cautiously drawn, wasreceived as authority throughout the whole reign of Charles II. ; it wasequally followed after the Revolution; and at this day it is undoubtedlaw. It is not so from the natural or technical rules of construction ofthe act of Parliament, but from the principles of juridical policy. Allthe judges who have ruled it, all the writers of credit who have writtenupon it, assign this reason, and this only, --_that treasons, beingplotted in secrecy, could in few cases be otherwise brought topunishment_. 

The same principle of policy has dictated a principle of relaxationwith regard to severe rules of evidence, in all cases similar, though ofa lower order in the scale of criminality. It is against fundamentalmaxims that an accomplice should be admitted as a witness: butaccomplices are admitted from the policy of justice, otherwiseconfederacies of crime could not be dissolved. There is no rule moresolid than that a man shall not entitle himself to profit by his owntestimony. But an informer, in case of highway robbery, may obtain fortypounds to his own profit by his own evidence: this is not in consequenceof positive provision in the act of Parliament; it is a provision ofpolicy, lest the purpose of the act should be defeated. 

Now, if policy has dictated this very large construction of an act ofParliament concerning high treason, if the same policy has dictatedexceptions to the clearest and broadest rules of evidence in otherhighly penal causes, and if all this latitude is taken concerningmatters for the greater part within our insular bounds, your Committeecould not, with safety to the larger and more remedial justice of theLaw of Parliament, admit any rules or pretended rules, unconnected anduncontrolled by circumstances, to prevail in a trial which regardedoffences of a nature as difficult of detection, and committed far fromthe sphere of the ordinary practice of our courts. 

If anything of an over-formal strictness is introduced into the trial ofWarren Hastings, Esquire, it does not seem to be copied from thedecisions of these tribunals. It is with great satisfaction yourCommittee has found that the reproach of "disgraceful subtleties, "inferior rules of evidence which prevent the discovery of truth, offorms and modes of proceeding which stand in the way of that justice theforwarding of which is the sole rational object of their invention, cannot fairly be imputed to the Common Law of England, or to theordinary practice of the courts below. 

CIRCUMSTANTIAL EVIDENCE, ETC. 

The rules of evidence in civil and in criminal cases, in law and inequity, being only reason methodized, are certainly the same. YourCommittee, however, finds that the far greater part of the law ofevidence to be found in our books turns upon questions relative to civilconcerns. Civil cases regard property: now, although property itself isnot, yet almost everything concerning property and all its modificationsis, of artificial contrivance. The rules concerning it become morepositive, as connected with positive institution. The legislatortherefore always, the jurist frequently, may ordain certain methods bywhich alone they will suffer such matters to be known and established;because their very essence, for the greater part, depends on thearbitrary conventions of men. Men act on them with all the power of acreator over his creature. They make fictions of law and presumptions of(_præsumptiones juris et de jure_) according to their ideas of utility;and against those fictions, and against presumptions so created, they doand may reject all evidence. However, even in these cases there is somerestraint. Lord Mansfield has let in a liberal spirit against thefictions of law themselves; and he declared that he would do what in onecase[68] he actually did, and most wisely, that he would admit evidenceagainst a fiction of law, when the fiction militated against the policyon which it was made. 

Thus it is with things which owe their existence to men; but where thesubject is of a physical nature, or of a moral nature, independent oftheir conventions, men have no other reasonable authority than toregister and digest the results of experience and observation. Crimesare the actions of physical beings with an evil intention abusing theirphysical powers against justice and to the detriment of society: in thiscase fictions of law and artificial presumptions (_juris et de jure_)have little or no place. The presumptions which belong to criminal casesare those natural and popular presumptions which are only observationsturned into maxims, like adages and apophthegms, and are admitted (whentheir grounds are established) in the place of proof, where better iswanting, 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 ratherin the intention than the action. Now the intention is proved but by twoways: either, 1st, by confession, --this first case is rare, butsimple, --2dly, by circumstantial proof, --this is difficult, and requirescare and pains. The connection of the intention and the circumstances isplainly of such a nature as more to depend on the sagacity of theobserver than on the excellence of any rule. The pains taken by theCivilians on that subject have not been very fruitful; and the Englishlaw-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 ofintention by circumstantial evidence. All the acts of the party, --allthings that explain or throw light on these acts, --all the acts ofothers relative to the affair, that come to his knowledge, and mayinfluence 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 calledto speak, --everything which tends to establish the connection betweenall these particulars, --every circumstance, precedent, concomitant, andsubsequent, become parts of circumstantial evidence. These are in theirnature infinite, and cannot be comprehended within any rule or broughtunder any classification. 

Now, as the force of that presumptive and conjectural proof rarely, ifever, depends on one fact only, but is collected from the number andaccumulation of circumstances concurrent in one point, we do not find aninstance, until this trial of Warren Hastings, Esquire, (which hasproduced many novelties, ) that attempts have been made by any court tocall on the prosecutor for an account of the purpose for which he meansto produce each particle of this circumstantial evidence, to take up thecircumstances one by one, to prejudge the efficacy of each matterseparately in proving the point, --and thus to break to pieces and togarble those facts, upon the multitude of which, their combination, andthe relation of all their component parts to each other and to theculprit, the whole force and virtue of this evidence depends. To doanything which can destroy this collective effect is to denycircumstantial evidence. 

Your Committee, too, cannot but express their surprise at the particularperiod of the present trial when the attempts to which we have alludedfirst began to be made. The two first great branches of the accusationof this House against Warren Hastings, Esquire, relate to public andnotorious acts, capable of direct proof, --such as the expulsion of CheytSing, with its consequences on the province of Benares, and the seizureof the treasures and jaghires of the Begums of Oude. Yet, in the proofof those crimes, your Committee cannot justly complain that we were verynarrowly circumscribed in the production of much circumstantial as wellas positive evidence. We did not find any serious resistance on thishead, till we came to make good our charges of secret crimes, --crimes ofa class and description in the proof of which all judges of allcountries have found it necessary to relax almost all their rules ofcompetency: such crimes as peculation, pecuniary frauds, extortion, andbribery. Eight out of nine of the questions put to the Judges by theLords, in the first stage of the prosecution, related to circumstancesoffered in proof of these secret crimes. 

Much industry and art have been used, among the illiterate andunexperienced, to throw imputations on this prosecution, and itsconduct, because so great a proportion of the evidence offered on thistrial (especially on the latter charges) has been circumstantial. Against the prejudices of the ignorant your Committee opposes thejudgment of the learned. It is known to them, that, when this proof isin its greatest perfection, that is, when it is most abundant incircumstances, it is much superior to positive proof; and for this wehave the authority of the learned judge who presided at the trial ofCaptain Donellan. "On the part of the prosecution, a great deal ofevidence 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 isweak enough to commit the act in the presence of other persons, or tosuffer them to see what he does at the time; and therefore it can onlybe made out by circumstances, either before the committing of the act, at the time when it was committed, or subsequent to it. And apresumption, which necessarily arises from circumstances, is very oftenmore convincing and more satisfactory than any other kind of evidence:because it is not within the reach and compass of human abilities toinvent a train of circumstances which shall be so connected together asto amount to a proof of guilt, without affording opportunities ofcontradicting a great part, if not all, of these circumstances. But ifthe circumstances are such as, when laid together, bring conviction toyour minds, it is then fully equal, if not, as I told you before, _more_convincing than positive evidence. " In the trial of Donellan no suchselection was used as we have lately experienced; no limitation to theproduction of every matter, before, at, and after the fact charged. Thetrial 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 hascharged 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 ofjustice. Lord Mansfield has said that he did not know a case in whichproof might not be supplied. [69]

Your Committee has resorted to the trial of Donellan, and they have anddo much rely upon it, first, on account of the known learning andability of the judge who tried the cause, and the particular attentionhe has paid to the subject of evidence, which forms a book in histreatise on _Nisi Prius_;--next, because, as the trial went _wholly_ oncircumstantial evidence, the proceedings in it furnish some of the mostcomplete and the fullest examples on that subject;--thirdly, because thecase is recent, and the law cannot be supposed to be materially alteredsince the time of that event. 

Comparing the proceedings on that trial, and the doctrines from thebench, with the doctrines we have heard from the woolsack, yourCommittee cannot comprehend how they can be reconciled. For the Lordscompelled the Managers to declare for what purpose they produced eachseparate member of their circumstantial evidence: a thing, as weconceive, not usual, and particularly not observed in the trial ofDonellan. We have observed in that trial, and in most others which wehave had occasion to resort to, that the prosecutor is suffered toproceed narratively and historically, without interruption. If, indeed, it appears on the face of the narration that what is represented to havebeen said, written, or done did not come to the knowledge of theprisoner, a question sometimes, but rarely, has been asked, whether theprisoner could be affected with the knowledge of it. When a connectionwith the person of the prisoner has been in any way shown, or evenpromised to be shown, the evidence is allowed to go on without furtheropposition. The sending of a sealed letter, --the receipt of a sealedletter, inferred from the delivery to the prisoner's servant, --the barepossession of a paper written by any other person, on the presumptionthat the contents of such letters or such paper were known to theprisoner, --and the being present when anything was said or done, on thepresumption of his seeing or hearing what passed, have been respectivelyruled to be sufficient. If, on the other hand, no circumstance ofconnection has been proved, the judge, in summing up, has directed thejury to pay no regard to a letter or conversation the proof of which hasso failed: a course much less liable to inconvenience, where the samepersons decide both the law and the fact. [70]

To illustrate the difficulties to which your Committee was subjected onthis head, we think it sufficient to submit to the House (reserving amore full discussion of this important point to another occasion) thefollowing short statement of an incident which occurred in this trial. 

By an express order of the Court of Directors, (to which, by the expresswords of the act of Parliament under which he held his office, he wasordered to yield obedience, ) Mr. Hastings and his colleagues weredirected to make an inquiry into all offences of bribery and corruptionin office. On the 11th of March a charge in writing of bribery andcorruption in office was brought against himself. On the 13th of thesame month, the accuser, a man of high rank, the Rajah Nundcomar, appears personally before the Council to make good his charge againstMr. Hastings before his own face. Mr. Hastings thereon fell into a veryintemperate 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 oftheir duty, and in obedience to the orders received under the act ofParliament, proceeded to take the evidence, which is very minute andparticular, and was entered in the records of the Council by the regularofficial secretary. It was afterwards read in Mr. Hastings's ownpresence, and by him transmitted, under his own signature, to the Courtof Directors. A separate letter was also written by him, about the sametime, desiring, on his part, that, in any inquiry into his conduct, "nota single word should escape observation. " This proceeding in the Councilyour Committee, in its natural order, and in a narrative chain ofcircumstantial proof, offered in evidence. It was not permitted to beread; and on the 20th and 21st of May, 1789, we were told from thewoolsack, "that, when a paper is not evidence by itself, " (such thispart of the Consultation, it seems, was reputed, ) "a party who wishes tointroduce a paper of that kind is called upon not only to state, but tomake out on proof, _the whole of the grounds upon which he proceeds tomake that paper proper evidence_; that the evidence that is producedmust be _the demeanor_ of the party respecting that paper; and it is theconnection between them, _as material to the charge depending_, thatwill enable them to be produced. "

Your Committee observes, that this was not a paper _foreign_ to theprisoner, and sent to him as _a letter_, the receipt of which, and hisconduct thereon, were to be brought home to him, to infer his guilt fromhis demeanor. It was an office document of his own department, concerning himself, and kept by officers of his own, and by himselftransmitted, as we have said, to the Court of Directors. Its proof wasin the record. The charge made against him, and his demeanor on beingacquainted with it, were not in separate evidence. They all laytogether, and composed a connected narrative of the business, authenticated by himself. 

In that case it seems to your Committee extremely irregular andpreposterous to demand previous and extraneous proofs of the demeanor ofthe party respecting the paper, and the connection between them, as_material to the charge_ depending; for this would be to try what theeffect 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 shouldin itself be conclusive, or at least should afford a violentpresumption: it must, we were told, without question, be material to thecharge depending. But, as we conceive, its materiality, more or less, isnot in the first instance to be established. To make it admissible, itis enough to give proof, or to raise a legal inference, of itsconnection both with the charge depending and the person of the partycharged, where it does not appear on the face of the evidence offered. Besides, by this new doctrine, the materiality required to be shown mustbe decided from a consideration, not of the whole circumstance, but intruth of one half of the circumstance, --of a demeanor unconnected withand unexplained by that on which it arose, though the connection betweenthe demeanor of the party and the paper is that which must be shown tobe material. Your Committee, after all they have heard, is yet to learnhow the full force and effect of any demeanor, as evidence of guilt orinnocence, can be known, unless it be also fully known _to what thatdemeanor applied_, --unless, when a person did or said anything, it beknown, not generally and abstractedly, that a paper was read to him, butparticularly and specifically _what were the contents of that paper_:whether they were matters lightly or weightily alleged, --within thepower of the party accused to have confuted on the spot, if false, --orsuch as, though he might have denied, he could not instantly havedisproved. The doctrine appeared and still appears to your Committee tobe totally abhorrent from the genius of circumstantial evidence, andmischievously subversive of its use. We did, however, offer thatextraneous proof which was demanded of us; but it was refused, as wellas the office document. 

Your Committee thought themselves the more bound to contend for everymode of evidence _to the intention, _ because in many of the cases thegross fact was admitted, and the prisoner and his counsel set uppretences of public necessity and public service for his justification. No way lay open for rebutting this justification, but by bringing outall the circumstances attendant on the transaction. 

ORDER AND TIME OF PRODUCING EVIDENCE. 

Your Committee found great impediment in the production of evidence, notonly on account of the general doctrines supposed to exist concerningits inadmissibility, drawn from its own alleged natural incompetency, orfrom its inapplicability under the pleading of the impeachment of thisHouse, but also from the mode of proceeding in bringing it forward. Hereevidence which we thought necessary to the elucidation of the cause wasnot suffered, upon the supposed rules of _examination in chief andcross-examination_, and on supposed rules forming a distinction betweenevidence _originally_ produced on the charge and evidence offered on_the reply_. 

On all these your Committee observes in general, that, if the ruleswhich respect the substance of the evidence are (as the great lawyers onwhose authority we stand assert they are) no more than rules ofconvenience, much more are those subordinate rules which regard theorder, the manner, and the time of the arrangement. These are purelyarbitrary, without the least reference to any fixed principle in thenature of things, or to any settled maxim of jurisprudence, andconsequently are variable at every instant, as the conveniencies of thecause may require. 

We admit, that, in the order of mere arrangement, there is a differencebetween examination of witnesses in chief and cross-examination, andthat in general these several parts are properly cast according to thesituation of the parties in the cause; but there neither is nor can beany precise rule to discriminate the exact bounds between examinationand 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 anytolerable degree of precision is when the judge, after fully hearing allparties, is to consider of his verdict or his sentence. Whilst the causecontinues under hearing in any shape, or in any stage of the process, itis the duty of the judge to receive every offer of evidence, apparentlymaterial, suggested to him, though the parties themselves, throughnegligence, ignorance, or corrupt collusion, should not bring itforward. A judge is not placed in that high situation merely as apassive instrument of parties. He has a duty of his own, independent ofthem, and that duty is to investigate the truth. There may be noprosecutor. In our law a permanent prosecutor is not of necessity. TheCrown prosecutor in criminal cases is a grand jury; and this isdissolved instantly on its findings and its presentments. But if noprosecutor appears, (and it has happened more than once, ) the court isobliged through its officer, the clerk of the arraigns, to examine andcross-examine every witness who presents himself; and the judge is tosee it done effectually, and to act his own part in it, --and this aslong as evidence shall be offered within the time which the mode oftrial 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 theclosing of the prisoner's defence, or such evidence has not been inreply given, it has happened from the peculiar nature of our commonjudicial proceedings, in which all the matter of evidence must bepresented whilst the bodily force and the memory or other mentalfaculties of men can hold out. This does not exceed the compass of onenatural day, or thereabouts: during that short space of time newevidence very rarely occurs for production by any of the parties;because the nature of man, joined to the nature of the tribunals, and ofthe mode of trial at Common Law, (good and useful on the whole, )prescribe limits which the mere principles of justice would ofthemselves never fix. 

But in other courts, such as the Court of Chancery, the Courts ofAdmiralty Jurisdiction, (except in prize causes under the act ofParliament, ) and in the Ecclesiastical Courts, wherein the trial is notby an inclosed jury in those courts, such strait limits are not ofcourse necessary: the cause is continued by many adjournments; as longas the trial lasts, new witnesses are examined (even after the regularstage) for each party, on a special application under the circumstancesto the sound discretion of the court, where the evidence offered isnewly come to the knowledge or power of the party, and appears on theface of it to be material in the cause. _Even after hearing_, newwitnesses have been examined, or former witnesses reëxamined, not as theright of the parties, but _ad informandam conscientiam judicis_. [71] Allthese things are not unfrequent in some, if not in all of these courts, and perfectly known to the judges of Westminster Hall; who cannot besupposed ignorant of the practice of the Court of Chancery, and who sitto try appeals from the Admiralty and Ecclesiastical Courts asdelegates. 

But as criminal prosecutions according to the forms of the Civil andCanon Law are neither many nor important in any court of this part ofthe kingdom, your Committee thinks it right to state the undisputedprinciple of the Imperial Law, from the great writer on this subjectbefore 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 maybe allowed to form other and new articles and to produce new witnesses. "Your Committee must here observe, that the _processus inquisitorius_ isthat proceeding in which the prosecution is carried on in the name ofthe judge acting _ex officio_, from that duty of his office which iscalled the _nobile officium judicis_. For the judge under the ImperialLaw possesses both those powers, the inquisitorial and the judicial, which in the High Court of Parliament are more aptly divided andexercised by the different Houses; and in this kind of process the Housewill see that Carpzovius couples the production of new witnesses and theforming of new articles (the undoubted privilege of the Commons) asintimately and necessarily connected. He then proceeds to solve thedoubt. "Certainly, " says he, "there are authors who deny, that, afterpublication of the depositions, any new witnesses and proofs that canaffect the prisoner ought to be received; which, " says he, "is true in acase where a private prosecutor has intervened, who produces thewitnesses. But if the judge proceeds by way of inquisition _ex officio_, then, even after the completion of the examination of witnesses againstthe prisoner, new witnesses may be received and examined, and, on newgrounds of suspicion arising, new articles may be formed, according tothe common opinion of the doctors; and as it is the most generallyreceived, so it is most agreeable to reason. "[72] And in anotherchapter, relative to the ordinary criminal process by a privateprosecutor, he lays it down, on the authority of Angelus, Bartolus, andothers, that, after the right of the party prosecuting is expired, thejudge, taking up the matter _ex officio_, may direct new witnesses andnew proofs, even after publication. [73] Other passages from the samewriter and from others might be added; but your Committee trusts thatwhat they have produced is sufficient to show the general principles ofthe Imperial Criminal Law. 

The High Court of Parliament bears in its modes of proceeding a muchgreater resemblance to the course of the Court of Chancery, theAdmiralty, 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. Theaccusation is brought into Parliament, at this very day, by _exhibitingarticles_; which your Committee is informed is the regular mode ofcommencing a criminal prosecution, where the office of the judge ispromoted, 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 eachparticular article; which is agreeable to the proceeding of the CivilLaw, and not of the Common Law. 

Anciently the resemblance was much nearer and stronger. Selden, who washimself a great ornament of the Common Law, and who was personallyengaged in most of the impeachments of his time, has written expresslyon the judicature in Parliament. In his fourth chapter, intituled, _OfWitnesses_, he lays down the practice of his time, as well as of ancienttimes, with respect to the proof by examination; and it is clearly apractice more similar to that of the Civil than the Common Law. "Thepractice at this day, " says he, "is to swear the witnesses in openHouse, and then to examine them there, _or at a committee_, either upon_interrogatories_ agreed upon in the House, or such as the committee intheir discretion shall demand. Thus it was in ancient times, as shallappear by the precedents, so many as they are, they being very sparingto record those ceremonies, which I shall briefly recite: I then addthose of later times. "

Accordingly, in times so late as those of the trial of LordMiddlesex, [74] upon an impeachment of the Commons, the whole course ofthe proceeding, especially in the mode of adducing the evidence, was ina manner the same as in the Civil Law: depositions were taken, andpublication regularly passed: and on the trial of Lord Strafford, bothmodes pointed out by Selden seem to have been indifferently used. 

It follows, therefore, that this high court (bound by none of theirrules) has a liberty to adopt the methods of any of the legal courts ofthe kingdom at its discretion; and in _sound_ discretion it ought toadopt 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 thelonger mode of trial. But to bring the methods observed (if such are infact observed) in the former, only from necessity, into the latter, bychoice, is to load it with the inconveniency of both, without theadvantages of either. The chief benefit of any process which admits ofadjournments is, that it may afford means of fuller information and moremature deliberation. If neither of the parties have a strict right toit, 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 orneglects in a party to the suit, which may cause nonsuit on the one handor 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, evenin civil cases; but still less ought that spirit which takes advantageof lapses and failures on either part to be suffered to govern in causescriminal. "Judges ought to _lean_ against every attempt to nonsuit aplaintiff on objections which have no relation to the real merits. It isunconscionable in a defendant to take advantage of the _apiceslitigandi_: against such objections _every possible presumption ought tobe made which ingenuity can suggest_. How disgraceful would it be to theadministration of justice to allow chicane to obstruct right!"[75] Thisobservation of Lord Mansfield applies equally to every means by which, indirectly as well as directly, the cause may fail upon any otherprinciples than those of its merits. He thinks that all the resources ofingenuity ought to be employed to baffle chicane, not to support it. Thecase in which Lord Mansfield has delivered this sentiment is merely acivil one. In civil causes of _meum et tuum_, it imports little to thecommonwealth, whether _Titus_ or _Mævius_ profits of a legacy, orwhether _John à Nokes_ or _John à Stiles_ is seized of the manor of_Dale_. For which reason, in many cases, the private interests of menare left by courts to suffer by their own neglects and their own want ofvigilance, as their fortunes are permitted to suffer from the samecauses in all the concerns of common life. But in crimes, where theprosecution is on the part of the public, (as all criminal prosecutionsare, except appeals, ) the public prosecutor ought not to be consideredas a plaintiff in a cause of _meum et tuum_; nor the prisoner, in such acause, as a common defendant. In such a cause the state itself is highlyconcerned 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 cannotrestore to him. Undoubtedly the state ought not to be weighed againstjustice; but it would be dreadful indeed, if causes of such importanceshould be sacrificed to petty regulations, of mere secondaryconvenience, not at all adapted to such concerns, nor even made with aview to their existence. Your Committee readily adopts the opinion ofthe learned Ryder, that it would be better, if there were no such rules, than that there should be no exceptions to them. Lord Hardwicke declaredvery properly, in the case of the Earl of Chesterfield against SirAbraham Janssen, "that political arguments, in the fullest sense of theword, as they concerned the government of a nation, must be, and alwayshave been, of great weight in the consideration of this court. Thoughthere be no _dolus malus_ in contracts, with regard to other persons, yet, if the rest of mankind are concerned as well as the parties, itmay be properly said, it regards the public utility. "[76] Lord Hardwickelaid 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 infinitelystronger, 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 ofthe House for this Report: it is so very important, that we thinkourselves justified in submitting it to the House without delay. YourCommittee, on the supposed rules here alluded to, has been prevented (asof right) from examining a witness of importance in the case, and one onwhose supposed knowledge of his most hidden transactions the prisonerhad himself, in all stages of this business, as the House well knows, endeavored to raise presumptions in favor of his cause. Indeed, it washis principal, if not only justification, as to the _intention_, in manydifferent acts of corruption charged upon him. The witness to whom weallude is Mr. Larkins. This witness came from India after your Committeehad closed the evidence of this House in chief, and could not beproduced before the time of the reply. Your Committee was not sufferedto examine him, --not, as they could find, on objections to theparticular question as improper, but upon some or other of the generalgrounds (as they believe) on which Mr. Hastings resisted any evidencefrom him. The party, after having resisted his production, on the nextsitting day admitted him, and by consent he was examined. YourCommittee entered a protest on the minutes in favor of their right. YourCommittee contended, and do contend, that, by the Law of Parliament, whilst the trial lasts, they have full right to call new evidence, asthe circumstances may afford and the posture of the cause may demand it. 

This right seems to have been asserted by the Managers for the Commonsin the case of Lord Stafford, 32 Charles II. [77] The Managers in thatcase claimed it as the right of the Commons to produce witnesses for thepurpose of fortifying their former evidence. Their claim was admitted bythe court. It is an adjudged case in the Law of Parliament. YourCommittee is well aware that the notorious perjury and infamy of thewitnesses in the trial of Lord Stafford has been used to throw a shadeof doubt and suspicion on all that was transacted on that occasion. Butthere is no force in such an objection. Your Committee has no concern inthe defence of these witnesses, nor of the Lords who found their verdicton such testimony, nor of the morality of those who produced it. Muchmay be said to palliate errors on the part of the prosecutors andjudges, from the heat of the times, arising from the great intereststhen agitated. But it is plain there may be perjury in witnesses, oreven conspiracy unjustly to prosecute, without the least doubt of thelegality and regularity of the proceedings in any part. This is tooobvious and too common to need argument or illustration. The proceedingin Lord Stafford's case never has, now for an hundred and fourteenyears, either in the warm controversies of parties, or in the cooldisquisitions of lawyers or historians, been questioned. The perjury ofthe witnesses has been more doubted at some periods than the regularityof the process has been at any period. The learned lawyer who led forthe Commons in that impeachment (Serjeant Maynard) had, near forty yearsbefore, taken a forward part in the great cause of the impeachment ofLord Strafford, and was, perhaps, of all men then in England, the mostconversant in the law and usage of Parliament. Jones was one of theablest lawyers of his age. His colleagues were eminent men. 

In the trial of Lord Strafford, (which has attracted the attention ofhistory more than any other, on account of the importance of the causeitself, the skill and learning of the prosecutors, and the eminentabilities of the prisoner, ) after the prosecutors for the Commons hadgone through their evidence on the articles, after the prisoner had alsomade his defence, either upon each severally, or upon each body ofarticles as they had been collected into one, and the Managers had inthe same manner replied, when, previous to the general concluding replyof the prosecutors, the time of the general summing up (or recollection, as it was called) of the whole evidence on the part of Lord Straffordarrived, the Managers produced new evidence. Your Committee wishes tocall the particular attention of the House to this case, as the contestbetween the parties did very nearly resemble the present, butprincipally because the sense of the Lords on the Law of Parliament, inits proceedings with regard to the reception of evidence, is theredistinctly laid down: so is the report of the Judges, relative to theusage of the courts below, full of equity and reason, and in perfectconformity 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 Stewardcommanded the Lieutenant of the Tower to bring forth the Earl ofStrafford to the bar; which being done, the Lord Steward signified thatboth sides might make a recollection of their evidence, and the Earl ofStrafford to begin first. 

"Hereupon Mr. Glynn desired that before the Earl of Strafford began, that the Commons might produce two witnesses to the fifteenth andtwenty-third articles, to prove that there be two men whose names areBerne; and so a mistake will be made clear. The Earl of Strafforddesired that no new witnesses may be admitted against him, unless hemight be permitted to produce witnesses on his part likewise; which theCommons consented to, so the Earl of Strafford would confine himself tothose articles upon which he made reservations: but he not agreeing tothat, and the Commons insisting upon it, the House was adjourned to theusual place above to consider of it; and after some debate, theirLordships thought it fit that the members of the Commons go on inproducing new witnesses, as they shall think fit, to the fifteenth andtwenty-third articles, and that the Earl of Strafford may presentlyproduce such witnesses as are present, and such as are not, to name thempresently, and to proceed on Monday next; and also, if the Commons andEarl of Strafford will proceed upon any other articles, upon new matter, they are to name the witnesses and articles on both sides presently, andto proceed on Monday next: but both sides may waive it, if they will. The Lord Steward adjourned this House to Westminster Hall, and, beingreturned thither, signified what the Lords had thought fit for thebetter proceeding in the business. The Earl of Strafford, upon this, desiring not to be limited to any reservation, but to be at liberty forwhat articles are convenient for him to fortify with new witnesses, [78]to which the Commons not assenting, and for other scruples which didarise in the case, one of the Peers did desire that the House might beadjourned, to consider further of the particulars. Hereupon the LordSteward adjourned the House to the usual place above. 

"The Lords, being come up into the House, fell into debate of thebusiness, and, for the better informing of their judgments what was thecourse and common justice of the kingdom, propounded this question tothe Judges: 'Whether it be according to the course of practice andcommon justice, before the Judges in their several courts, for theprosecutors in behalf of the King, _during the time of trial, to producewitnesses to discover the truth_, and whether the prisoner may not dothe like?' The Lord Chief-Justice delivered this as the unanimousopinions of himself and all the rest of the Judges: 'That, according tothe course of practice and common justice, before them in their severalcourts, upon trial by jury, _as long as the prisoner is at the bar, andthe jury not sent away_, either side may give their evidence and examinewitnesses to discover truth; and this is all the opinion as we can giveconcerning the proceedings before us. ' Upon, some consideration afterthis, the House appointed the Earl of Bath, Earl of South'ton, Earl ofHartford, Earl of Essex, Earl of Bristol, and the Lord Viscount Say etSeale to draw up some reasons upon which the former order was made, which, being read as followeth, were approved of, as the order of theHouse: 'The gentlemen of the House of Commons did declare, that theychallenge to themselves, by the common justice of the kingdom, thatthey, being prosecutors for the King, may bring any new proofs bywitnesses during the time of the evidence being not fully concluded. TheLords, being judges, and so equal to them and the prisoner, conceivedthis their desire to be just and reasonable; and also that, by the samecommon justice, the prisoner may use the same liberty; and that, toavoid any occasions of delay, the Lords thought fit that the articlesand witnesses be presently named, and such as may be presently producedto be used presently, [and such as cannot to be used on Monday, ] and nofurther 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 mayproceed to the recollection of their evidence on both sides; if bothsides will not waive it, then the Lord Steward is to read the precedentorder; and if they will not proceed then, this House is to adjourn andrise. "[79]

By this it will appear to the House how much this exclusion of evidence, _brought for the discovery of truth_, is unsupported either byParliamentary precedent or by the rule as understood in the Common Lawcourts below; and your Committee (protesting, however, against beingbound by any of the technical rules of inferior courts) thought, andthink, they had a right to see such a body of precedents and argumentsfor 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 thevoluminous collection of the State Trials, or elsewhere; but havingreferred to the most laborious compiler of law and equity, Mr. Viner, who has allotted a whole volume to the title of Evidence, we find butone ruled case in a trial at Common Law, before or since, where newevidence for the discovery of truth has been rejected, as not being indue time. "A privy verdict had been given in B. R. 14 Eliz. For thedefendant; but afterwards, before the inquest gave their verdict openly, the plaintiff prayed that he might give more evidence to the jury, hehaving (as it seemed) discovered that the jury had found against him:but the Justices would not admit him to do so; but after that SouthcoteJ. Had been in C. B. To ask the opinion of the Justices there, they tookthe verdict. "[80] In this case the offer of new evidence was not duringthe trial. The trial was over; the verdict was actually delivered to theJudge; there was also an appearance that the discovery of the actualfinding 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 notclosed, that they sent a Judge from the bench into the Common Pleas toobtain the opinion of their brethren there, before they could venture totake upon them to consider the time for production of evidence aselapsed. The case of refusal, taken with its circumstances, is full asstrong an example in favor of the report of the Judges in LordStrafford's case as any precedent of admittance can be. 

The researches of your Committee not having furnished them with anycases in which evidence has been rejected during the trial, as being outof time, we have found some instances in which it has been actuallyreceived, --and received not to repel any new matter in the prisoner'sdefence, but when the prisoner had called all his witnesses, and therebyclosed his defence. A remarkable instance occurred on the trial ofHarrison for the murder of Dr. Clenche. The Justices who tried thecause, viz. , Lord Chief-Justice Holt, and the Justices Atkins and Nevil, admitted the prosecutor to call new evidence, for no other reason butthat a new witness was then come into court, who had not been in courtbefore. [81] These Justices apparently were of the same opinion on thispoint with the Justices who gave their opinion in the case of LordStafford. 

Your Committee, on this point, as on the former, cannot discover anyauthority for the decision of the House of Lords in the Law ofParliament, 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 inlaw to which they could have access, have heard by rumor that they havebeen justified upon the practice of the courts in ordinary trials bycommission of Oyer and Terminer. To give any legal precision to thisterm of _practice_, as thus applied, your Committee apprehends it mustmean, that the judge in those criminal trials has so regularly rejecteda certain kind of evidence, when offered there, that it is to beregarded in the light of a case frequently determined by legalauthority. If such had been discovered, though your Committee nevercould have allowed these precedents as rules for the guidance of theHigh Court of Parliament, yet they should not be surprised to see theinferior judges forming their opinions on their own confined practice. Your Committee, in their inquiry, has found comparatively few reports ofcriminal trials, except the collection under the title of "StateTrials, " a book compiled from materials of very various authority; andin none of those which we have seen is there, as appears to us, a singleexample of the rejection of evidence similar to that rejected by theadvice of the Judges in the House of Lords. Neither, if such examplesdid exist, could your Committee allow them to apply directly andnecessarily, as a measure of reason, to the proceedings of a courtconstituted so very differently from those in which the Common Law isadministered. In the trials below, the Judges decide on the competencyof the evidence before it goes to the jury, and (under the correctives, in the use of their discretion, stated before in this Report) with greatpropriety and wisdom. Juries are taken promiscuously from the mass ofthe people. They are composed of men who, in many instances, in mostperhaps, never were concerned in any causes, judicially or otherwise, before the time of their service. They have generally no previouspreparation, or possible knowledge of the matters to be tried, or whatis applicable or inapplicable to them; and they decide in a space oftime too short for any nice or critical disquisition. The Judges, therefore, of necessity, must forestall the evidence, where there is adoubt on its competence, and indeed observe much on its credibility, orthe most dreadful consequences might follow. The institution of juries, if not thus qualified, could not exist. Lord Mansfield makes the sameobservation with regard to another corrective of the short mode oftrial, --that of a _new trial_. 

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

This final and independent judicature, because it is final andindependent, ought to be very cautious with regard to the rejection ofevidence. If incompetent evidence is received by them, there is nothingto hinder their judging upon it afterwards according to its value: itmay 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 theyinjure the cause of justice without any remedy. Against errors of juriesthere is remedy by a new trial. Against errors of judges there isremedy, in civil causes, by demurrer and bills of exceptions; againsttheir final mistake there is remedy by writ of error, in courts ofCommon Law. In Chancery there is a remedy by appeal. If they wilfullyerr in the rejection of evidence, there was formerly the terror existingof punishment by impeachment of the Commons. But with regard to theLords, there is no remedy for error, no punishment for a wilful wrong. 

Your Committee conceives it not improbable that this apparently totaland unreserved submission of the Lords to the dictates of the judges ofthe inferior courts (no proper judges, in any light or in any degree, ofthe 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 tojudge, not by _its own_ rules, acting in another capacity, or by thosewhich it shall choose _pro re nata_ to make, but by the rules of theinferior court from whence the appeal comes. For the fault or themistake of the inferior judge is, that he has not proceeded, as he oughtto do, according to the law which he was to administer; and thecorrection, if such shall take place, is to compel the court fromwhence the appeal comes to act as originally it ought to have acted, according to law, as the law ought to have been understood and practisedin that tribunal. The Lords, in such cases of necessity, judge on thegrounds of the law and practice of the courts below; and this they canvery rarely learn with precision, but from the body of the Judges. Ofcourse much deference is and ought to be had to their opinions. But bythis means a confusion may arise (if not well guarded against) betweenwhat they do in their _appellate_ jurisdiction, which is frequent, andwhat they ought to do in their _original_ jurisdiction, which is rare;and by this the whole original jurisdiction of the Peers, and the wholelaw and usage of Parliament, at least in their virtue and spirit, may beconsiderably impaired. 

 * * * * *

After having thus submitted to the House the general tenor of theproceedings in this trial, your Committee will, with all convenientspeed, lay before the House the proceedings on each head of evidenceseparately which has been rejected; and this they hope will put theHouse more perfectly in possession of the principal causes of the lengthof 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, § 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 Lunæ, 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. Itdoes not take in all the extra-judicial opinions. 

[31] "_Dissentient. _

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

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

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

"4thly. Because unusual mystery and secrecy in our judicial proceedingsmust tend either to discredit the acquittal of the prisoner, or renderthe 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 tothe 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 LordStrafford, 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 _Præsumptio_. 

[47] Bartolus

[48] Lib. II. Obs. 149, § 9. 

[49] Lib. I. Obs. 91, § 7. 

[50] Antiqua jurisprudentia aspera quidem illa, tenebricosa, et tristis, non tam in æquitate quam in verborum superstitione fundata, eaqueCiceronis ætatem fere attigit, mansitque annos circiter CCCL. Quæ hancexcepit, viguitque annos fere septuaginta novem, superiori longehumanior; quippe quæ magis utilitate communi, quam potestate verborum, negotia moderaretur. --Gravina, p. 86. 

[51] Omichund _v. _ Barker, Atk. I. 

[52] Gaill, Lib. II. Obs. 20, § 5. 

[53] N. B. --In some criminal cases also, though not of treason, husbandis admitted to prove an assault upon his wife, for the King, ruled byRaymond, Chief-Justice, Trin. 11th Geo. , King _v. _ Azire. And forvarious 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 wellworth 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 thejudges. 

[65] 1st Siderfin, p. 431. 

[66] Interest reipublicæ 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. LordPreston'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. 1Ch. 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 felonyand murder whereof he stood indicted, and the Earl being brought to thebar, the High Steward acquainted him therewith; and the Houseimmediately adjourned to the Chamber of Parliament, and, having put thefollowing question to the Judges, adjourned to the next day. 

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

On the 18th, the House then sitting in the Chamber of Parliament, theLord Chief Baron, in the absence of the Chief-Justice of the CommonPleas, delivered in writing the opinion of the Judges, which they hadagreed on and reduced into form that morning. His Lordship added manyweighty reasons in support of the opinion, which he urged with greatstrength and propriety, and delivered with a becoming dignity. 

_To the Second Question. _

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

The reasons upon which the Judges founded their answer to the questionrelating to the further proceedings of the House after the HighSteward's commission dissolved, which is usually done upon pronouncingjudgment, 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 thitherby _Certiorari_, is in judgment of law a proceeding before the King inParliament; and therefore the House, in all those cases, may notimproperly be styled the Court of our Lord the King in Parliament. Thiscourt is founded upon immemorial usage, upon the law and custom ofParliament, and is part of the original system of our Constitution. Itis open for all the purposes of judicature, during the continuance ofthe Parliament: it openeth at the beginning and shutteth at the end ofevery session: just as the Court of King's Bench, which, is likewise injudgment of law held before the King himself, openeth and shutteth withthe term. The authority of this court, or, if I may use the expression, its constant activity for the ends of public justice, independent of anyspecial powers derived from the Crown, is not doubted in the case ofwrits of error from those courts of law whence error lieth inParliament, and of impeachments for misdemeanors. 

It was formerly doubted, whether, in the case of an impeachment fortreason, and in the case of an indictment against a peer for any capitalcrime, removed into Parliament by _Certiorari_, whether in these casesthe court can proceed to trial and judgment without an High Stewardappointed by special commission from the Crown. This doubt seemeth tohave arisen from the not distinguishing between a proceeding in theCourt of the High Steward and that before the King in Parliament. Thename, style, and title of office is the same in both cases: but theoffice, the powers and preëminences annexed to it, differ very widely;and so doth the constitution of the courts where the offices areexecuted. The identity of the name may have confounded our ideas, asequivocal words often do, if the nature of things is not attended to;but the nature of the offices, properly stated, will, I hope, removeevery doubt on these points. 

In the Court of the High Steward, he alone is judge in all points of lawand practice; the peers triers are merely judges of fact, and aresummoned by virtue of a precept from the High Steward to appear beforehim on the day appointed by him for the trial, _ut rei veritas meliussciri poterit_. The High Steward's commission, after reciting that anindictment hath been found against the peer by the grand jury of theproper county, impowereth him to send for the indictment, to convene theprisoner before him at such day and place as he shall appoint, then andthere to hear and determine the matter of such indictment; to cause thepeers triers, _tot et tales, per quos rei veritas melius sciri poterit_, at the same day and place to appear before him; _veritateque indecompertâ_, to proceed to judgment according to the law and custom ofEngland, and thereupon to award execution. [82] By this it is plain thatthe sole right of judicature is in cases of this kind vested in the HighSteward; that it resideth solely in his person; and consequently, without this commission, which is but in nature of a commission of Oyerand Terminer, no one step can be taken in order to a trial; and thatwhen his commission is dissolved, which he declareth by breaking hisstaff, the court no longer existeth. 

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

It hath, indeed, been usual, and very expedient it is, in point of orderand regularity, and for the solemnity of the proceeding, to appoint anofficer for presiding during the time of the trial, and until judgment, and to give him the style and title of Steward of England: but thismaketh no sort of alteration in the constitution of the court; it is thesame court, founded in immemorial usage, in the law and custom ofParliament, whether such appointment be made or not. It acteth in itsjudicial capacity in every order made touching the time and place of thetrial, the postponing the trial from time to time upon petition, according to the nature and circumstances of the case, the allowance ornon-allowance of council to the prisoner, and other matters relative tothe trial;[83] and all this before an High Steward hath been appointed. And so little was it apprehended, in some cases which I shall mentionpresently, that the existence of the court depended on the appointmentof an High Steward, that the court itself directed in what manner and bywhat form of words he should be appointed. It hath likewise received andrecorded the prisoner's confession, which amounteth to a conviction, before the appointment of an High Steward; and hath allowed to prisonersthe benefit of acts of general pardon, where they appeared entitled toit, as well without the appointment of an High Steward as after hiscommission dissolved. And when, in the case of impeachments, the Commonshave sometimes, at conferences between the Houses, attempted tointerpose in matters preparatory to the trial, the general answer hathbeen, "This is a point of judicature upon which the Lords will notconfer; they impose silence upon themselves, "--or to that effect. I neednot here cite instances; every man who hath consulted the Journals ofeither House hath met with many of them. 

I will now cite a few cases, applicable, in my opinion, to the presentquestion. And I shall confine myself to such as have happened since theRestoration; because, in questions of this kind, modern cases, settledwith deliberation, and upon a view of former precedents, give more lightand satisfaction than the deepest search into antiquity can afford; andalso because the prerogatives of the Crown, the privileges ofParliament, and the rights of the subject in general appear to me tohave been more studied and better understood at and for some yearsbefore that period than in former ages. 

In the case of the Earl of Danby and the Popish lords then underimpeachments, the Lords, [84] on the 6th of May, 1679, appointed time andplace for hearing the Earl of Danby, by his council, upon the validityof his plea of pardon, and for the trials of the other lords, and votedan address to his Majesty, praying that he would be pleased to appointan 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 thatmessage, the Commons expressed themselves to the followingeffect:--"They cannot apprehend what should induce your Lordships toaddress his Majesty for an High Steward, for determining the validity ofthe pardon which hath been pleaded by the Earl of Danby, as also for thetrial of the other five lords, because they conceive the constitutingan High Steward is not necessary, but that judgment may be given inParliament upon impeachment without an High Steward"; and concluded witha proposition, that, for avoiding any interruption or delay, a committeeof both Houses might be nominated, to consider of the most proper waysand methods of proceeding. This proposition the House of Peers, after along debate, rejected: _Dissentientibus_, Finch, [85] Chancellor, andmany other lords. However, on the 11th, the Commons' proposition of the8th was upon a second debate agreed to; and the Lord Chancellor, LordPresident, and ten other lords, were named of the committee, to meet andconfer with a committee of the Commons. The next day the Lord Presidentreported, that the committees of both Houses met that morning, and madean entrance into the business referred to them: that the Commons desiredto see the commissions that are prepared for an High Steward at thesetrials, and also the commissions in the Lord Pembroke's and the LordMorley's cases: that to this the Lords' committees said, --"_The HighSteward is but Speaker pro tempore, and giveth his vote as well as theother lords; this changeth not the nature of the court_; and the Lordsdeclared, they have power enough to proceed to trial, though the Kingshould not name an High Steward:[86] that this seemed to be asatisfaction to the Commons, provided it was entered in the Lords'Journals, which are records. " Accordingly, on the same day, "_It isdeclared and ordered by the Lords Spiritual and Temporal in Parliamentassembled, that the office of an High Steward, upon trials of peers uponimpeachments, is not necessary to the House of Peers; but that the Lordsmay proceed in such trials, if an High Steward be not appointedaccording to their humble desire. _"[87] On the 13th the Lord Presidentreported, that the committees of both Houses had met that morning, anddiscoursed, in the first place, on the matter of a Lord High Steward, and had perused former commissions for the office of High Steward; andthen, putting the House in mind of the order and resolution of thepreceding day, proposed from the committees that a new commission mightissue, so as the words in the commission may be thus changed: viz. , Instead of, _Ac pro eo quod officium Seneschalli Angliæ, (cujuspræsentia in hac parte requiritur, ) ut accepimus, jam vacat_, may beinserted, _Ac pro eo quod proceres et magnates in Parliamento nostroassemblati nobis humiliter supplicaverunt ut Seneschallum Angliæ pro hacvice constituere dignaremur_: to which the House agreed. [88]

It must be admitted that precedents drawn from times of ferment andjealousy, as these were, lose much of their weight, since passion andparty prejudice generally mingle in the contest; yet let it beremembered, that these are resolutions in which both Houses concurred, and in which the rights of both were thought to be very nearlyconcerned, --the Commons' right of impeaching with effect, and the wholejudicature of the Lords in capital cases. For, if the appointment of anHigh Steward was admitted to be of absolute necessity, (howevernecessary it may be for the regularity and solemnity of the proceedingduring the trial and until judgment, which I do not dispute, ) everyimpeachment may, for a reason too obvious to be mentioned, be renderedineffectual, and the judicature of the Lords in all capital casesnugatory. 

It was from a jealousy of this kind, not at that juncture altogethergroundless, and to guard against everything from whence the necessity ofan High Steward in the case of an impeachment might be inferred, thatthe Commons proposed and the Lords readily agreed to the amendment inthe Steward's commission which I have already stated. And it hath, Iconfess, great weight with me, that this amendment, which was at thesame time directed in the cases of the five Popish lords, whencommissions should pass for their trials, hath taken place in everycommission upon impeachments for treason since that time. [89] And Icannot help remarking, that in the case of Lord Lovat, when neither theheat of the times nor the jealousy of parties had any share in theproceeding, the House ordered, "That the commission for appointing aLord High Steward shall be in the like form as that for the trial of theLord Viscount Stafford, as entered in the Journal of this House on the30th of November, 1680: except that the same shall be in the Englishlanguage. "[90]

I will make a short observation on this matter. The order, on the 13thof May, 1679, for varying the form of the commission, was, as appearethby the Journal, plainly made in consequence of the resolution of the12th, and was founded on it; and consequently the constant, unvaryingpractice with regard to the new form goeth, in my opinion, a great waytowards showing, that, in the sense of all succeeding times, thatresolution was not the result of faction or a blamable jealousy, but wasfounded in sound reason and true policy. It may be objected, that theresolution of the 12th of May, 1679, goeth no further than to aproceeding upon impeachment. The letter of the resolution, it isadmitted, goeth no further. But this is easily accounted for: aproceeding by impeachment was the subject-matter of the conference, andthe Commons had no pretence to interpose in any other. But what say theLords? _The High Steward is but as a Speaker or Chairman pro tempore, for the more orderly proceeding at the trials; the appointment of himdoth not alter the nature of the court, which still remaineth the Courtof the Peers in Parliament. _ From these premises they draw theconclusion I have mentioned. Are not these premises equally true in thecase of a proceeding upon indictment? They undoubtedly are. 

It must likewise be admitted, that in the proceeding upon indictment theHigh Steward's commission hath never varied from the ancient form insuch cases. The words objected to by the Commons, _Ac pro eo quodofficium Seneschalli Angliæ, (cujus præsentia in hac parte requiritur, )ut accepimus, jam vacat_, are still retained; but this proveth no morethan 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 inthe Court of the High Steward. I will now state the substance of that ina proceeding in the Court of the Peers in Parliament; and shall make useof that in the case of the Earl of Kilmarnock and others, as being thelatest, and in point of form agreeing with the former precedents. Thecommission, after reciting that William, Earl of Kilmarnock, &c. , standindicted before commissioners of gaol-delivery in the County of Surrey, for high treason, in levying war against the King, and that the Kingintendeth that the said William, Earl of Kilmarnock, &c. , shall beheard, examined, sentenced, and adjudged before himself, in this presentParliament, touching the said treason, and for that the office ofSteward of Great Britain (whose presence is required upon thisoccasion) is now vacant, as we are informed, appointeth the then LordChancellor Steward of Great Britain, to bear, execute, and exercise (forthis time) the said office, with all things due and belonging to thesame office, in that behalf. 

What, therefore, are the things due and belonging to the office in acase of this kind? Not, as in the Court of the High Steward, a right ofjudicature; for the commission itself supposeth that right to reside ina court then subsisting before the King in Parliament. The parties areto be there heard, sentenced, and adjudged. What share in the proceedingdoth the High Steward, then, take? By the practice and usage of theCourt of the Peers in Parliament, he giveth his vote as a memberthereof, with the rest of the peers; but, for the sake of regularity andorder, he presideth during the trial and until judgment, as Chairman orSpeaker _pro tempore_. In that respect, therefore, it may be properlyenough said, that his presence is required during the trial and untiljudgment, and in no other. Herein I see no difference between the caseof an impeachment and of an indictment. I say, during the time of thetrial and until judgment; because the court hath, as I observed before, from time to time done various acts, plainly judicial, before theappointment of an High Steward, and where no High Steward hath ever beenappointed, and even after the commission dissolved. I will to thispurpose cite a few cases. 

I begin with the latest, because they are the latest, and were ruledwith great deliberation, and for the most part upon a view of formerprecedents. 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 the26th, 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 attendedby the two Chief-Justices and Chief-Baron, and had heard them touchingthe construction of the act of the 7th and 8th of King William, "forregulating trials in cases of high treason and misprision of treason, "the House, upon reading the report, came to several resolutions, foundedfor the most part on the construction of that act. What thatconstruction was appeareth from the Lord High Steward's address to theprisoners just before their arraignment. Having mentioned that act asone happy consequence of the Revolution, he addeth, --"Howeverinjuriously that revolution hath been traduced, whatever attempts havebeen made to subvert this happy establishment founded on it, yourLordships will now have the benefit of that law in its full extent. "

I need not, after this, mention any other judicial acts done by theHouse in this case, before the appointment of the High Steward: manythere are. For the putting a construction upon an act relative to theconduct of the court and the right of the subject at the trial, and inthe proceedings preparatory to it, and this in a case entirely new, andupon a point, to say no more in this place, not extremely clear, wasundoubtedly an exercise of authority proper only for a court having fullcognizance of the cause. 

I will not minutely enumerate the several orders made preparatory to thetrial of Lord Lovat, and in the several cases I shall have occasion tomention, touching the time and place of the trial, the allowance ornon-allowance of council, and other matters of the like kind, allplainly judicial; because the like orders occur in all the cases where ajournal of the preparatory steps hath been published by order of thePeers. With regard to Lord Lovat's case, I think the order directing theform of the High Steward's commission, which I have already taken noticeof, is not very consistent with the idea of a court whose powers can besupposed to depend, at any point of time, upon the existence ordissolution of that commission. 

In the case of the Earl of Derwentwater and the other lords impeached atthe same time, the House received and recorded the confessions of thoseof them who pleaded guilty, long before the _teste_ of the HighSteward's commission, which issued merely for the solemnity of givingjudgment against them upon their conviction. This appeareth by thecommission itself. It reciteth, that the Earl of Derwentwater andothers, _coram nobis in præsenti Parliamento_, had been impeached by theCommons for high treason, and had, _coram nobis in præsentiParliamento_, pleaded guilty to that impeachment; and that the King, intending that the said Earl of Derwentwater and others, _de et proproditione unde ipsi ut præfertur impetit', accusat', et convict'existunt coram nobis in præsenti Parliamento, secundum legem etconsuetudinem hujus regni nostri Magnæ Britanniæ, audientur, sententientur, et adjudicentur_, constituteth the then Lord ChancellorHigh Steward (_hac vice_) to do and execute all things which to theoffice of High Steward in that behalf do belong. The receiving andrecording the confession of the prisoners, which amounted to aconviction, so that nothing remained but proceeding to judgment, wascertainly an exercise of judicial authority, which no assembly, howgreat soever, not having full cognizance of the cause, could exercise. 

In the case of Lord Salisbury, who had been impeached by the Commons forhigh treason, the Lords, upon his petition, allowed him the benefit ofthe act of general pardon passed in the second year of William and Mary, so far as to discharge him from his imprisonment, upon a constructionthey put upon that act, no High Steward ever having been appointed inthat 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 inthe Tower, notwithstanding the late act of free and general pardon, andpraying to be discharged, the Lords ordered the Judges to attend on theMonday following, to give their opinions whether the said Earl bepardoned 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 wasordered that he be admitted to bail, and the next day he and hissureties entered into a recognizance of bail, himself in ten thousandpounds, and two sureties in five thousand pounds each; and on the 30thhe and his sureties were, after a long debate, discharged from theirrecognizance. [91] It will not be material to inquire whether the Housedid right in discharging the Earl without giving the Commons anopportunity of being heard; since, in fact, they claimed and exercised aright of judicature without an High Steward, --which is the only use Imake of this case. 

They did the same in the case of the Earl of Carnwarth, the LordsWiddrington and Nairn, long after the High Steward's commissiondissolved. These lords had judgment passed on them at the same timethat judgment was given against the Lords Derwentwater, Nithsdale, andKenmure; and judgment being given, the High Steward immediately brokehis staff, and declared the commission dissolved. They continuedprisoners in the Tower under reprieves, till the passing the act ofgeneral pardon, in the 3d of King George I. On the 21st of November, 1717, the House being informed that these lords had severally enteredinto recognizances before one of the judges of the Court of King's Benchfor their appearance in the House in this session of Parliament, andthat the Lords Carnwarth and Widdrington were attending accordingly, andthat the Lord Nairn was ill at Bath and could not then attend, the LordsCarnwarth and Widdrington were called in, and severally at the barprayed that their appearance might be recorded; and likewise prayed thebenefit of the act[92] for his Majesty's general and free pardon. Whereupon the House ordered that their appearance be recorded, and thatthey attend again to-morrow, in order to plead the pardon; and therecognizance of the Lord Nairn was respited till that day fortnight. Onthe morrow the Lords Carnwarth and Widdrington, then attending, werecalled in; and the Lord Chancellor acquainted them severally, that itappeared by the records of the House that they severally stood attaintedof high treason, and asked them severally what they had to say why theyshould not be remanded to the Tower of London. Thereupon they severally, upon their knees, prayed the benefit of the act, and that they mighthave their lives and liberty pursuant thereunto. And theAttorney-General, who then attended for that purpose, declaring that hehad no objection on his Majesty's behalf to what was prayed, conceivingthat those lords, not having made any escape since their conviction, were entitled to the benefit of the act, the House, after reading theclause in the act relating to that matter, [93] agreed that they shouldbe allowed the benefit of the pardon, as to their lives and liberties, and discharged their recognizances, and gave them leave to departwithout further day given for their appearance. On the 6th of Decemberfollowing, the like proceedings were had, and the like orders made, inthe case of Lord Nairn. [94]

I observe that the Lord Chancellor did not ask these lords what they hadto say why execution should not be awarded. There was, it is probable, some little delicacy as to that point. But since the allowance of thebenefit of the act, as to life and liberty, which was all that wasprayed, was an effectual bar to any future imprisonment on that account, and also to execution, and might have been pleaded as such in any courtwhatsoever, the whole proceeding must be admitted to have been in acourt having complete jurisdiction in the case, notwithstanding the HighSteward's commission had been long dissolved, --which is all the use Iintended to make of this case. 

I will not recapitulate: the cases I have cited, and the conclusionsdrawn from them, are brought into a very narrow compass. I will onlyadd, that it would sound extremely harsh to say, that a court ofcriminal jurisdiction, founded in immemorial usage, and held in judgmentof law before the King himself, can in any event whatever be under anutter incapacity of proceeding to trial and judgment, either ofcondemnation or acquittal, the ultimate objects of every criminalproceeding, without certain supplemental powers derived from the Crown. 

These cases, with the observations I have made on them, I hopesufficiently warrant the opinion of the Judges upon that part of thesecond question, in the case of the late Earl Ferrers, which I havealready mentioned, --and also what was advanced by the Lord Chief-Baronin his argument on that question, --"That, though the office of HighSteward should happen to determine before execution done according tothe judgment, yet the Court of the Peers in Parliament, where thatjudgment was given, would subsist for all the purposes of justice duringthe sitting of the Parliament, " and consequently, that, in the casesupposed by the question, that court might appoint a new day for theexecution. 

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 criminalproceeding by a prosecutor disclaims all knowledge of any matter sointerrogated, it be competent for such prosecutor to pursue suchexamination, by proposing a question containing the particulars of ananswer supposed to have been made by such witness before a committee ofthe House of Commons, or in any other place, and by demanding of himwhether 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 theunanimous opinion of the Judges upon the question of law put to them onFriday, the 29th of February last, as follows:--"That, when a witnessproduced and examined in a criminal proceeding by a prosecutor disclaimsall knowledge of any matter so interrogated, it is not competent forsuch prosecutor to pursue such examination, by proposing a questioncontaining the particulars of an answer supposed to have been made bysuch witness before a committee of the House of Commons, or in any otherplace, and by demanding of him whether the particulars so suggested werenot the answer he had so made. "

 1788, April 10. --Pa. 592. 

_Second. _

_Question. _--Whether it be competent for the Managers to produce anexamination taken without oath by the rest of the Council in the absenceof Mr. Hastings, the Governor-General, charging Mr. Hastings withcorruptly receiving 3, 54, 105 rupees, which examination came to hisknowledge, and was by him transmitted to the Court of Directors as aproceeding of the said Councillors, in order to introduce the proof ofhis demeanor thereupon, --it being alleged by the Managers for theCommons, that he took no steps to clear himself, in the opinion of thesaid Directors, of the guilt thereby imputed, but that he took activemeans to prevent the examination by the said Councillors of his servantCantoo Baboo?

 1789, May 14--Pa. 677. 

 * * * * *

_Answer. _--The Lord Chief-Baron of the Court of Exchequer delivered theunanimous opinion of the Judges upon the said question, in thenegative, --and gave his reasons. 

 1789, May 20. --Pa. 718. 

_Third. _

_Question. _--Whether the instructions from the Court of Directors of theUnited Company of Merchants of England trading to the East Indies, toWarren Hastings, Esquire, Governor-General, Lieutenant-General JohnClavering, the Honorable George Monson, Richard Barwell, Esquire, andPhilip Francis, Esquire, Councillors, (constituted and appointed theGovernor-General and Council of the said United Company's Presidency ofFort William in Bengal, by an act of Parliament passed in the lastsession, intituled, "An act for establishing certain regulations for thebetter management of the affairs of the East India Company, as well inIndia 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 13thof March, 1775, up to the time that Mr. Hastings left the Council, theConsultation of the 20th of March, 1775, the letter written by Mr. Hastings to the Court of Directors on the 25th of March, 1775, (it beingalleged that Mr. Hastings took no steps to explain or defend hisconduct, ) are sufficient to introduce the examination of Nundcomar, orthe proceedings of the rest of the Councillors, on said 13th of March, after Mr. Hastings left the Council, --such examination and proceedingscharging 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 theunanimous opinion of the Judges upon the said question, in thenegative, --and gave his reasons. 

 1789, May 27. --Pa. 771. 

_Fourth. _

_Question. _--Whether the public accounts of the Nizamut and Bhela, underthe seal of the Begum, attested also by the Nabob, and transmitted byMr. Goring to the Board of Council at Calcutta, in a letter bearing datethe 29th June, 1775, received by them, recorded without objection on thepart of Mr. Hastings, and transmitted by him likewise without objectionto the Court of Directors, and alleged to contain accounts of moneyreceived by Mr. Hastings, --and it being in proof, that Mr. Hastings, onthe 11th of May, 1778, moved the Board to comply with the requisitionsof the Nabob Mobarek ul Dowlah to reappoint the Munny Begum and RajahGourdas (who made up those accounts) to the respective offices theybefore filled, and which was accordingly resolved by the Board, --oughtto be read?

 1789, June 17. --Pa. 855. 

 * * * * *

_Answer. _--The Lord Chief-Baron of the Court of Exchequer delivered theunanimous opinion of the Judges upon the said question, in thenegative, --and gave his reasons. 

 1789, June 24. --Pa. 922. 

_Fifth. _

_Question. _--Whether the paper delivered by Sir Elijah Impey, on the 7thof July, 1775, in the Supreme Court, to the Secretary of the SupremeCouncil, in order to be transmitted to the Council as the resolution ofthe Court in respect to the claim made for Roy Rada Churn, on account ofhis being vakeel of the Nabob Mobarek ul Dowlah, --and which paper wasthe subject of the deliberation of the Council on the 31st July, 1775, Mr. Hastings being then present, and was by them transmitted to theCourt of Directors, as a ground for such instructions from the Court ofDirectors as the occasion might seem to require, --may be admitted asevidence of the actual state and situation of the Nabob with referenceto the English government?

 1789, July 2. --Pa. 1001. 

 * * * * *

_Answer. _--The Lord Chief-Baron of the Court of Exchequer delivered theunanimous opinion of the Judges upon the said question, in theaffirmative, --and gave his reasons. 

 1789, July 7. --Pa. 1030. 

_Sixth. _

_Question. _--Whether it be or be not competent to the Managers for theCommons to give evidence upon the charge in the sixth article, to provethat the rent, at which the defendant, Warren Hastings, let the landsmentioned in the said sixth article of charge to Kelleram, fell intoarrear and was deficient, --and whether, if proof were offered, that therent fell in arrear immediately after the letting, the evidence would inthat case be competent?

 1790, April 22. --Pa. 364. 

 * * * * *

_Answer. _--The lord Chief-Baron of the Court of Exchequer delivered theunanimous opinion of the Judges upon the said question, --"That it is notcompetent to the Managers for the Commons to give evidence upon thecharge in the sixth article, to prove that the rent, at which thedefendant, Warren Hastings, let the lands mentioned in the said sixtharticle of charge to Kelleram, fell into arrear and was deficient, "--andgave his reasons. 

 1790, April 27. --Pa. 388. 

_Seventh. _

_Question. _--Whether it be competent for the Managers for the Commons toput the following question to the witness, upon the sixth article ofcharge, viz. : "What impression the letting of the lands to Kelleram andCullian 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 theunanimous opinion of the Judges upon the said question, --"That it is notcompetent to the Managers for the Commons to put the following questionto the witness, upon the sixth article of charge, viz. : What impression, the letting of the lands to Kelleram and Cullian Sing made on the mindsof 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 toput the following question to the witness, upon the seventh article ofcharge, viz. : "Whether more oppressions did actually exist under the newinstitution than under the old"?

 1790, April 29. --Pa. 415. 

 * * * * *

_Answer. _--The Lord Chief-Baron of the Court of Exchequer delivered theunanimous opinion of the Judges upon the said question, --"That it is notcompetent to the Managers for the Commons to put the following questionto the witness, upon the seventh article of charge, viz. : Whether moreoppressions did actually exist under the new institution than under theold, "--and gave his reasons. 

 1790, May 4. --Pa. 428. 

_Ninth. _

_Question. _--Whether the letter of the 13th April, 1781, can be given inevidence by the Managers for the Commons, to prove that the letter ofthe 5th of May, 1781, already given in evidence, relative to theabolition of the Provincial Council and the subsequent appointment ofthe Committee of Revenue, was false in any other particular than thatwhich is charged in the seventh article of charge?

 1790, May 20. --Pa. 557. 

 * * * * *

_Answer. _--The Lord Chief-Baron of the Court of Exchequer delivered theunanimous opinion of the Judges upon the said question, --"That it is notcompetent for the Managers on the part of the Commons to give anyevidence on the seventh article of impeachment, to prove that theletter of the 5th of May, 1781, is false in any other particular thanthat wherein it is expressly charged to be false, "--and gave hisreasons. 

 1790, June 2. --Pa. 634. 

_Tenth. _

_Question. _--Whether it be competent to the Managers for the Commons toexamine the witness to any account of the debate which was had on the9th day of July, 1778, previous to the written minutes that appear uponthe Consultation of that date?

 1794, February 25. --Lords' Minutes. 

 * * * * *

_Answer. _--The Lord Chief-Justice of the Court of Common Pleas deliveredthe unanimous opinion of the Judges upon the said question, --"That it isnot competent to the Managers for the Commons to examine the witness, Philip Francis, Esquire, to any account of the debate which was had onthe 9th day of July, 1778, previous to the written minutes that appearupon 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 originaldemand being made upon Cheyt Sing and the period of the witness'sleaving Bengal, it was at any time in his power to have reversed or puta stop to the demand upon Cheyt Sing, --the same not being relative toany matter originally given in evidence by the defendant?

 1794, February 27. --Lords' Minutes. 

 * * * * *

_Answer. _--The Lord Chief-Justice of the Court of Common Pleas deliveredthe unanimous opinion of the Judges upon the said question, --"That it isnot competent for the Managers for the Commons to ask the witness, whether, between the time of the original demand being made upon CheytSing and the period of his leaving Bengal, it was at any time in hispower to have reversed or put a stop to the demand upon Cheyt Sing, --thesame not being relative to any matter originally given in evidence bythe defendant, "--and gave his reasons. 

 1794, March 1. --Lords' Minutes. 

_Twelfth. _

_Question. _--Whether a paper, read in the Court of Directors on the 4thof November, 1783, and then referred by them to the consideration of theCommittee of the whole Court, and again read in the Court of Directorson the 19th of November, 1783, and amended and ordered by them to bepublished for the information of the Proprietors, can be received inevidence, in reply, to rebut the evidence, given by the defendant, ofthe thanks of the Court of Directors, signified to him on the 28th ofJune, 1785?

 1794, March 1. --Lords' Minutes. 

_Answer. _--Whereupon the Lord Chief-Justice of the Court of CommonPleas, having conferred with the rest of the Judges present, deliveredtheir unanimous opinion upon the said question, in the negative, --andgave his reasons. 

 1794, March 1. --Lords' Minutes. 

FOOTNOTES:

[82] See Lord Clarendon's commission as High Steward, and the writs andprecepts 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 LordsKilmarnock, &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 standeththus:--"Their Lordships further declared to the committee, that a LordHigh Steward, was made _hac vice_ only; that, notwithstanding the makingof a Lord High Steward, the court remained the same, and was not therebyaltered, but still remained the Court of Peers in Parliament; that theLord High Steward was but as a Speaker or Chairman, for the more orderlyproceeding at the trials. "

[87] This resolution my Lord Chief-Baron referred to and cited in hisargument upon the second question proposed to the Judges, which isbefore stated. 

[88] This amendment arose from an exception taken to the commission bythe committee for the Commons, which, as it then stood, did in theiropinion 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, accordingto the said amendment, issue, to bear date after the order andresolution of the 12th. --_Commons' Journal_ of the 15th of May. 

[89] See, in the State Trials, the commissions in the cases of the Earlof Oxford, Earl of Derwentwater, and others, --Lord Wintoun and LordLovat. 

[90] See the proceedings printed by order of the House of Lords, 4thFebruary, 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 difficultfor us to talk upon certain subjects in which Parliamentary order isinvolved. It is difficult to speak of them with regularity, or to besilent with dignity and wisdom. All our proceedings have been constantlypublished, according to the discretion and ability of individuals out ofdoors, with impunity, almost ever since I came into Parliament. Byusage, the people have obtained something like a prescriptive right tothis abuse. I do not justify it; but the abuse is now grown soinveterate that to punish it without previous notice would have anappearance of hardship, if not injustice. The publications I allude toare frequently erroneous as well as irregular, but they are not alwaysso; what they give as the reports and resolutions of this House havesometimes been given correctly. And it has not been uncommon to attackthe proceedings of the House itself under color of attacking theseirregular publications. Notwithstanding, however, this colorable plea, this House has in some instances proceeded to punish the persons whohave thus insulted it. You will here, too, remark, Sir, that, when acomplaint is made of a piratical edition of a work, the authenticity ofthe original work is admitted, and whoever attacks the matter of thework itself in these unauthorized publications does not attack it lessthan 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 aperson for whom I have likewise a great veneration, a pamphlet publishedby 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 yourCommittees to this House. It has been censured, as I am told, by theperson and in the place I have mentioned, in very harsh and veryunqualified terms. It has been there said, (and so far very truly, ) thatat all times, and particularly at this time, it is necessary, for thepreservation of order and the execution of the law, that the charactersand reputation of the Judges of the Courts in Westminster Hall should bekept in the highest degree of respect and reverence; and that in thispamphlet, described by the name of a libel, the characters and conductof those Judges upon a late occasion have been aspersed, as arising fromignorance or corruption. 

Sir, combining all the circumstances, I think it impossible not tosuppose that this speech does reflect upon a Report which, by an orderof the Committee on which I served, I had the honor of presenting tothis House. For anything improper in that Report I am responsible, aswell as the members of the Committee, to this House, and to this Houseonly. The matters contained in it, and the observations upon them, aresubmitted to the wisdom of the House, that you may act upon both in thetime and manner that to your judgment may seem most expedient, --or thatyou may not act upon them at all, if you should think that mostexpedient for the public good. Your Committee has obeyed your orders; ithas done its duty in making that Report. 

I am of opinion, with the eminent person by whom that Report iscensured, that it is necessary at this time very particularly that theauthority of Judges should be preserved and supported. This, however, does not depend so much upon us as upon themselves. It is necessary topreserve the dignity and respect of all the constitutional authorities. This, too, depends in part upon ourselves. It is necessary to preservethe respect due to the House of Lords: it is full as necessary topreserve the respect due to the House of Commons, upon which (whatevermay be thought of us by some persons) the weight and force of all otherauthorities within this kingdom essentially depend. If the power of theHouse of Commons be degraded or enervated, no other can stand. We mustbe true to ourselves. We ought to animadvert upon any of our members whoabuse the trust we place in them; we must support those who, withoutregard to consequences, perform their duty. 

With regard to the matter which I am now submitting to yourconsideration, 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 reflectionupon any person or persons whatever. It does not accuse the Judges ofignorance or corruption. Whatever it says it does not say calumniously. That kind of language belongs to persons whose eloquence entitles themto a free use of epithets. The Report states that the Judges had giventheir opinions secretly, contrary to the almost uninterrupted tenor ofParliamentary usage on such occasions. It states that the mode of givingthe opinions was unprecedented, and contrary to the privileges of theHouse of Commons. It states that the Committee did not know upon whatrules and principles the Judges had decided upon those cases, as theyneither heard their opinions delivered, nor have found them entered uponthe Journals of the House of Lords. It is very true that we were and areextremely dissatisfied with those opinions, and the consequentdeterminations of the Lords; and we do not think such a mode ofproceeding at all justified by the most numerous and the bestprecedents. None of these sentiments is the Committee, as I conceive, (and I feel as little as any of them, ) disposed to retract, or to softenin the smallest degree. 

The Report speaks for itself. Whenever an occasion shall be regularlygiven to maintain everything of substance in that paper, I shall beready to meet the proudest name for ability, learning, or rank that thiskingdom contains, upon that subject. Do I say this from any confidencein myself? Far from it. It is from my confidence in our cause, and inthe ability, the learning, and the constitutional principles which thisHouse contains within itself, and which I hope it will evercontain, --and in the assistance which it will not fail to afford tothose who with good intention do their best to maintain the essentialprivileges of the House, the ancient law of Parliament, and the publicjustice of this kingdom. 

 * * * * *

No reply or observation was made on the subject by any other member, norwas 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 councilsof this kingdom, so long employed the greatest and most august of itstribunals, now approaches to a close. The wreck and fragments of ourcause (which has been dashed to pieces upon rules by which yourLordships have thought fit to regulate its progress) await your finaldetermination. Enough, however, of the matter is left to call for themost exemplary punishment that any tribunal ever inflicted upon anycriminal. 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 tobe acquitted: the Commons of Great Britain must be condemned; and yourLordships must be the instruments of his glory and of our disgrace. Thisis the issue upon which he has put this cause, and the issue upon whichwe are obliged to take it now, and to provide for it hereafter. 

My Lords, I confess that at this critical moment I feel myself oppressedwith an anxiety that no words can adequately express. The effect of allour labors, the result of all our inquiries, is now to be ascertained. You, my Lords, are now to determine, not only whether all these laborshave been vain and fruitless, but whether we have abused so long thepublic patience of our country, and so long oppressed merit, instead ofavenging crime. I confess I tremble, when I consider that your judgmentis now going to be passed, not on the culprit at your bar, but upon theHouse of Commons itself, and upon the public justice of this kingdom, asrepresented in this great tribunal. It is not that culprit who is upontrial; it is the House of Commons that is upon its trial, it is theHouse of Lords that is upon its trial, it is the British nation that isupon 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 anysort of rhetorical blandishments whatever. Such artifices would neitherbe 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, weknow 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 personthan to the cause. We know that they are used to stifle theremonstrances of conscience in the judge, and to reconcile it to theviolation of his duty. We likewise know that they are too often used ingreat and important causes (and more particularly in causes like this)to reconcile the prosecutor to the powerful factions of a protectedcriminal, and to the injury of those who have suffered by hiscrimes, --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 slightquarrel over a table to compromise. All this may now be done at theexpense of the persons whose cause we pretend to espouse. We may allpart, my Lords, with the most perfect complacency and entire good humortowards one another, while nations, whole suffering nations, are left tobeat the empty air with cries of misery and anguish, and to cast forthto an offended heaven the imprecations of disappointment and despair. 

One of the counsel for the prisoner (I think it was one who hascomported himself in this cause with decency) has told your Lordshipsthat we have come here on account of _some doubts_ entertained in theHouse of Commons concerning the conduct of the prisoner at yourbar, --that we shall be extremely delighted, when his defence and yourLordships' judgment shall have set him free, and shall have discoveredto us our error, --that we shall then mutually congratulate oneanother, --and that the Commons, and the Managers who represent themhere, will be the first to rejoice in so happy an event and so fortunatea 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 atwar with real virtue, these are the things which are ten times more atwar with real duty, than any vice known by its name and distinguished byits proper character. My Lords, far from us, I will add, be that falseand affected candor that is eternally in treaty with crime, --that halfvirtue, which, like the ambiguous animal that flies about in thetwilight of a compromise between day and night, is to a just man's eyean odious and disgusting thing! There is no middle point in which theCommons of Great Britain can meet tyranny and oppression. No, we nevershall (nor can we conceive that we ever should) pass from this bar, without indignation, without rage and despair, if the House of Commonsshould, upon such a defence as has here been made against such a chargeas they have produced, be foiled, baffled, and defeated. No, my Lords, we never could forget it; a long, lasting, deep, bitter memory of itwould 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 ifjustice be denied us, the accused is not acquitted, but the tribunal iscondemned. We know that this man is guilty of all the crimes which hestands accused of by us. We have not come here to you, in the rash heatof a day, with that fervor which sometimes prevails in popularassemblies, and frequently misleads them. No: if we have been guilty oferror in this cause, it is a deliberate error, the fruit of long, laborious inquiry, --an error founded on a procedure in Parliament beforewe came here, the most minute, the most circumstantial, and the mostcautious that ever was instituted. Instead of coming, as we did in LordStrafford's case, and in some others, voting the impeachment andbringing it up on the same day, this impeachment was voted from ageneral sense prevailing in the House of Mr. Hastings's criminalityafter an investigation begun in the year 1780, and which produced in1782 a body of resolutions condemnatory of almost the whole of hisconduct. Those resolutions were formed by the Lord Advocate ofScotland, and carried in our House by the unanimous consent of allparties: I mean the then Lord Advocate of Scotland, --now one of hisMajesty's principal Secretaries of State, and at the head of this veryIndian department. Afterwards, when this defendant came home, in theyear 1785, we reïnstituted our inquiry. We instituted it, as yourLordships and the world know, at his own request, made to us by hisagent, then a member of our House. We entered into it at large; wedeliberately moved for every paper which promised information on thesubject. These papers were not only produced on the part of theprosecution, as is the case before grand juries, but the friends of theprisoner produced every document which they could produce for hisjustification. We called all the witnesses which could enlighten us inthe cause, and the friends of the prisoner likewise called every witnessthat could possibly throw any light in his favor. After all these longdeliberations, we referred the whole to a committee. When it had gonethrough that committee, and we thought it in a fit state to be digestedinto these charges, we referred the matter to another committee; and theresult of that long examination and the labor of these committees is theimpeachment now at your bar. 

If, therefore, we are defeated here, we cannot plead for ourselves thatwe have done this from a sudden gust of passion, which sometimesagitates and sometimes misleads the most grave popular assemblies. No:it is either the fair result of twenty-two years' deliberation that webring before you, or what the prisoner says is just and true, --thatnothing but malice in the Commons of Great Britain could possiblyproduce 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 nowbefore your Lordships, who are to determine whether this man has abusedhis power in India for fourteen years, or whether the Commons has abusedtheir power of inquiry, made a mock of their inquisitorial authority, and turned it to purposes of private malice and revenge. We are not comehere to compromise matters; we do not admit [do admit?] that our fame, our honors, nay, the very inquisitorial power of the House of Commons isgone, if this man be not guilty. 

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

 * * * * *

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

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

After we had brought forward this cause, (the greatest in extent thatever was tried before any human tribunal, to say nothing of themagnitude of its consequences, ) we soon found, whatever the reasonsmight be, without at present blaming the prisoner, without blaming yourLordships, and far are we from imputing blame to ourselves, we soonfound that this trial was likely to be protracted to an unusual length. The Managers of the Commons, feeling this, went up to their constituentsto procure from them the means of reducing it within a compass fitterfor their management and for your Lordships' judgment. Being furnishedwith this power, a second selection was made upon the principles of thefirst: not upon the idea that what we left could be less clearlysustained, but because we thought a selection should be made upon somejuridical principle. With this impression on our minds, we reduced thewhole cause to four great heads of guilt and criminality. Two of them, namely, Benares and the Begums, show the effects of his open violenceand injustice; the other two expose the principles of pecuniarycorruption upon which the prisoner proceeded: one of these displays hispassive corruption in receiving bribes, and the other his activecorruption, in which he has endeavored to defend his passive corruptionby forming a most formidable faction both abroad and at home. There ishardly any one act of the prisoner's corruption in which there is notpresumptive violence, nor any acts of his violence in which there arenot presumptive proofs of corruption. These practices are so intimatelyblended with each other, that we thought the distribution which we haveadopted would best bring before you the spirit and genius of hisgovernment; and we were convinced, that, if upon these four great headsof charge your Lordships should not find him guilty, nothing could beadded to them which would persuade you so to do. 

In this way and in this state the matter now comes before yourLordships. I need not tread over the ground which has been trod withsuch extraordinary abilities by my brother Managers, of whom I shall saynothing more than that the cause has been supported by abilities equalto it; and, my Lords, no abilities are beyond it. As to the part which Ihave sustained in this procedure, a sense of my own abilities, weighedwith the importance of the cause, would have made me desirous of beingleft out of it; but I had a duty to perform which superseded everypersonal consideration, and that duty was obedience to the House ofwhich I have the honor of being a member. This is all the apology Ishall make. We are the Commons of Great Britain, and therefore cannotmake apologies. I can make none for my obedience; they want none fortheir commands. They gave me this office, not from any confidence in myability, but from a confidence in the abilities of those who were toassist me, and from a confidence in my zeal, --a quality, my Lords, whichoftentimes supplies the want of great abilities. 

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

As to his demeanor, my Lords, I will venture to say, that, if we fullyexamine the conduct of all prisoners brought before this high tribunal, from the time that the Duke of Suffolk appeared before it down to thetime of the appearance of my Lord Macclesfield, if we fully examine theconduct of prisoners in every station of life, from my Lord Bacon, downto the smugglers who were impeached in the reign of King William, I say, my Lords, that we shall not, in the whole history of Parliamentarytrials, find anything similar to the demeanor of the prisoner at yourbar. What could have encouraged that demeanor your Lordships will, whenyou reflect seriously upon this matter, consider. God forbid that theauthority either of the prosecutor or of the judge should dishearten theprisoner so as to circumscribe the means or enervate the vigor of hisdefence! God forbid that such a thing should even appear to be desiredby anybody in any British tribunal! But, my Lords, there is a behaviorwhich broadly displays a want of sense, a want of feeling, a want ofdecorum, --a behavior which indicates an habitual depravity of mind, thathas no sentiments of propriety, no feeling for the relations of life, noconformity to the circumstances of human affairs. This behavior does notindicate the spirit of injured innocence, but the audacity of hardened, habitual, shameless guilt, --affording legitimate grounds for inferring avery defective education, very evil society, or very vicious habits oflife. There is, my Lords, a nobleness in modesty, while insolence isalways base and servile. A man who is under the accusation of hiscountry is under a very great misfortune. His innocence, indeed, may atlength shine out like the sun, yet for a moment it is under a cloud; hishonor is in abeyance, his estimation is suspended, and he stands, as itwere, a doubtful person in the eyes of all human society. In thatsituation, not a timid, not an abject, but undoubtedly a modestbehavior, would become a person even of the most exalted dignity and ofthe firmest fortitude. 

The Romans (who were a people that understood the decorum of life aswell as we do) considered a person accused to stand in such a doubtfulsituation that from the moment of accusation he assumed either amourning or some squalid garb, although, by the nature of theirconstitution, accusations were brought forward by one of their lowestmagistrates. The spirit of that decent usage has continued from the timeof the Romans till this very day. No man was ever brought before yourLordships that did not carry the outward as well as inward demeanor ofmodesty, of fear, of apprehension, of a sense of his situation, of asense 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 agreat deal further than being merely deficient in decent humility. Instead of defending himself, he has, with a degree of insolenceunparalleled in the history of pride and guilt, cast out a recriminatoryaccusation upon the House of Commons. Instead of considering himself asa person already under the condemnation of his country, and uncertainwhether or not that condemnation shall receive the sanction of yourverdict, he ranks himself with the suffering heroes of antiquity. Joining with them, he accuses us, the representatives of his country, ofthe blackest ingratitude, of the basest motives, of the most abominableoppression, not only of an innocent, but of a most meritoriousindividual, who, in your and in our service, has sacrificed his health, his fortune, and even suffered his fame and character to be called inquestion from one end of the world to the other. This, I say, he chargesupon the Commons of Great Britain; and he charges it before the Court ofPeers of the same kingdom. Had I not heard this language from theprisoner, and afterwards from his counsel, I must confess I could hardlyhave believed that any man could so comport himself at your Lordships'bar. 

After stating in his defence the wonderful things he did for us, hesays, --"I maintained the wars which were of your formation, or that ofothers, _not of mine_. I won one member of the great Indian confederacyfrom it by an act of seasonable restitution; with another I maintained asecret intercourse, and converted him into a friend; a third I drew offby diversion and negotiation, and employed him as the instrument ofpeace. When _you_ cried out for peace, and your cries were heard bythose who were the objects of it, I resisted this and every otherspecies of counteraction by rising in my demands, and accomplished apeace, and I hope an everlasting one, with one great state; and I atleast 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 lifeof impeachment_. "

Comparing our conduct with that of the people of India, hesays, --"_They_ manifested a generosity of which we have no example inthe European world. Their conduct was the effect of their sense ofgratitude for the benefits they had received from my administration. Iwish I could say as much of my own countrymen. "

My Lords, here, then, we have the prisoner at your bar in his demeanornot defending himself, but recriminating upon his country, charging itwith perfidy, ingratitude, and oppression, and making a comparison of itwith the banians of India, whom he prefers to the Commons of GreatBritain. 

My Lords, what shall we say to this demeanor? With regard to the chargeof 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 inevidence before you. If you have received such evidence, you havereceived it obliquely; for there is no other direct proof before yourLordships of such services than that of there having been greatdistresses and great calamities in India during his government. Uponthese distresses and calamities he has, indeed, attempted to justifyobliquely the corruption that has been charged upon him; but you havenot properly in issue these services. You cannot admit the evidence ofany such services received directly from him, as a matter ofrecriminatory charge upon the House of Commons, because you have notsuffered that House to examine into the validity and merit of this plea. We have not been heard upon this recriminatory charge, which makes aconsiderable part of the demeanor of the prisoner; we cannot be heardupon it; and therefore I demand, on the part of the Commons of GreatBritain, that it be dismissed from your consideration: and this Idemand, whether you take it as an attempt to render odious the conductof the Commons, whether you take it in mitigation of the punishment dueto the prisoner for his crimes, or whether it be adduced as apresumption that so virtuous a servant never could be guilty of theoffences with which we charge him. In whichever of these lights you maybe inclined to consider this matter, I say you have it not in evidencebefore you; and therefore you must expunge it from your thoughts, andseparate it entirely from your judgment. I shall hereafter haveoccasion, to say a few words on this subject of _merits_. I have saidthus much at present in order to remove extraneous impressions from yourminds. For, admitting that your Lordships are the best judges, as I wellknow that you are, yet I cannot say that you are not men, and thatmatter of this kind, however irrelevant, may not make an impression uponyou. It does, therefore, become us to take some occasional notice ofthese supposed services, not in the way of argument, but with a view byone sort of prejudice to destroy another prejudice. If there is anythingin evidence which tends to destroy this plea of merits, we shall recurto that evidence; if there is nothing to destroy it but argument, weshall have recourse to that argument; and if we support that argument byauthority and document not in your Lordships' minutes, I hope it willnot be the less considered as good argument because it is so supported. 

I must now call your Lordships' attention from the vaunted services ofthe prisoner, which have been urged to convict us of ingratitude, toanother part of his recriminatory defence. He says, my Lords, that wehave not only oppressed him with unjust charges, (which is a matter foryour Lordships to judge, and is now the point at issue between us, ) butthat, instead of attacking him by fair judicial modes of proceeding, bystating crimes clearly and plainly, and by proving those crimes, andshowing their necessary consequences, we have oppressed him with allsorts of foul and abusive language, --so much so, that every part of ourproceeding has, in the eye of the world, more the appearance of privaterevenge than of public justice. 

Against this impudent and calumnious recriminatory accusation, whichyour 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 willsay nothing by way of defence. The Commons of Great Britain, my Lords, are a rustic people: a tone of rusticity is therefore the proper accentof their Managers. We are not acquainted with the urbanity andpoliteness of extortion and oppression; nor do we know anything of thesentimental delicacies of bribery and corruption. We speak the languageof truth, and we speak it in the plain, simple terms in which truthought 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 whichhears us: to any others we owe no apology whatever. 

The prisoner at your bar admits that the crimes which we charge himwith are of that atrocity, that, if brought home to him, he meritsdeath. Yet, when, in pursuance of our duty, we come to state thesecrimes with their proper criminatory epithets, when we state in strongand direct terms the circumstances which heighten and aggravate them, when we dwell on the immoral and heinous nature of the acts, and theterrible effects which such acts produce, and when we offer to proveboth the principal facts and the aggravatory ones by evidence, and toshow their nature and quality by the rules of law, morality, and policy, then this criminal, then his counsel, then his accomplices andhirelings, posted in newspapers and dispersed in circles through everypart of the kingdom, represent him as an object of great compassion, because he is treated, say they, with, nothing but opprobrious names andscurrilous invectives. 

To all this the Managers of the Commons will say nothing by way ofdefence: 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 preventsjudgment and often defeats its effects, to be debauched and corrupted. Much less is this to be suffered in the presence of our coördinatebranch of legislature, and as it were with your and our own tacitacquiescence. Whenever the public mind is misled, it becomes the duty ofthe Commons of Great Britain to give it a more proper tone and a justerway of thinking. When ignorance and corruption have usurped theprofessor's chair, and placed themselves in the seats of science and ofvirtue, it is high time for us to speak out. We know that the doctrinesof folly are of great use to the professors of vice. We know that it isone of the signs of a corrupt and degenerate age, and one of the meansof insuring its further corruption and degeneracy, to give mild andlenient epithets to vices and to crimes. The world is much influenced bynames. And as terms are the representatives of sentiments, when personswho exercise any censorial magistracy seem in their language tocompromise with crimes and criminals by expressing no horror of the oneor detestation of the other, the world will naturally think that theyact merely to acquit themselves in its sight in form, but in reality toevade their duty. Yes, my Lords, the world must think that such personspalter with their sacred trust, and are tender to crimes because theylook forward to the future possession of the same power which they nowprosecute, and purpose to abuse it in the manner it has been abused bythe criminal of whom they are so tender. 

To remove such an imputation from us, we assert that the Commons ofGreat Britain are not to receive instructions about the language whichthey ought to hold from the gentlemen who have made profitable studiesin the academies of Benares and of Oude. We know, and therefore do notwant to learn, how to comport ourselves in prosecuting the haughty andovergrown delinquents of the East. We cannot require to be instructed bythem 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 intheir steps, and we speak in their language. 

Your Lordships well know, for you must be conversant in this kind ofreading, that you once had before you a man of the highest rank in thiscountry, one of the greatest men of the law and one of the greatest menof 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 hardmeasure from the Commons and their Managers, those Managers thoughtthemselves bound _seriatim_, one after another, to express the utmostindignation 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. Theylived in an age in which politeness was as well understood and as muchcultivated as it is at present; but they knew what they were doing, andthey were resolved to use no language but what their ancestors had used, and to suffer no insolence which their ancestors would not havesuffered. We tread in their steps; we pursue their method; we learn ofthem: and we shall never learn at any other school. 

We know from history and the records of this House, that a Lord Baconhas been before you. Who is there, that, upon hearing this name, doesnot instantly recognize everything of genius the most profound, everything of literature the most extensive, everything of discovery themost penetrating, everything of observation on human life the mostdistinguishing and refined? All these must be instantly recognized, forthey are all inseparably associated with the name of Lord Verulam. Yet, when this prodigy was brought before your Lordships by the Commons ofGreat Britain for having permitted his menial servant to receivepresents, what was his demeanor? Did he require his counsel not "to letdown the dignity of his defence"? No. That Lord Bacon, whose leastdistinction 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, likea man who was conscious of merits of the highest kind, but who was atthe same time conscious of having fallen into guilt. The House ofCommons did not spare him. They brought him to your bar. They foundspots in that sun. And what, I again ask, was his behavior? That ofcontrition, that of humility, that of repentance, that which belongs tothe greatest men lapsed and fallen through human infirmity into error. He did not hurl defiance at the accusations of his country; he bowedhimself before it. Yet, with all his penitence, he could not escape thepursuit of the House of Commons, and the inflexible justice of thisCourt. Your Lordships fined him forty thousand pounds, notwithstandingall his merits, notwithstanding his humility, notwithstanding hiscontrition, notwithstanding the decorum of his behavior, so well suitedto a man under the prosecution of the Commons of England before thePeers of England. You fined him in a sum fully equal to one hundredthousand pounds of the present day; you imprisoned him during the King'spleasure; and you disqualified him forever from having a seat in thisHouse and any office in this kingdom. This is the way in which theCommons behaved formerly, and in which your Lordships acted formerly, when no culprit at this bar dared to hurl a recriminatory accusationagainst his prosecutors, or dared to censure the language in which theyexpressed their indignation at his crimes. 

The Commons of Great Britain, following these examples and fortified bythem, abhor all compromise with guilt either in act or in language. They will not disclaim any one word that they have spoken, because, myLords, they have said nothing abusive or illiberal. It has been, saidthat we have used such language as was used to Sir Walter Raleigh, whenhe was called, not by the Commons, but by a certain person of a learnedprofession, "a spider of hell. " My Lords, Sir Walter was a greatsoldier, a great mariner, and one of the first scholars of his age. Tocall him a spider of hell was not only indecent in itself, but perfectlyfoolish, from the term being totally inapplicable to the object, and fitonly for the very pedantic eloquence of the person who used it. But ifSir Walter Raleigh had been guilty of numberless frauds andprevarications, if he had clandestinely picked up other men's money, concealed his peculation by false bonds, and afterwards attempted tocover it by the cobwebs of the law, then my Lord Coke would havetrespassed a great deal more against decorum than against propriety ofsimilitude 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 asare proper to portray guilt. After describing the magnitude of thecrime, we describe the magnitude of the criminal. We have declared himto be not only a public robber himself, but the head of a system ofrobbery, the captain-general of the gang, the chief under whom a wholepredatory band was arrayed, disciplined, and paid. This, my Lords, iswhat we offered to prove fully to you, what in part we have proved, andthe whole of which I believe we could prove. In developing such a massof criminality and in describing a criminal of such magnitude as wehave now brought before you, we could not use lenient epithets withoutcompromising with crime. We therefore shall not relax in our pursuitsnor in our language. No, my Lords, no! we shall not fail to feelindignation, wherever our moral nature has taught us to feel it; norshall we hesitate to speak the language which is dictated by thatindignation. Whenever men are oppressed where they ought to beprotected, we called [call?] it tyranny, and we call the actor a tyrant. Whenever goods are taken by violence from the possessor, we call it arobbery, and the person who takes it we call a robber. Moneyclandestinely taken from the proprietor we call theft, and the personwho takes it we call a thief. When a false paper is made out to obtainmoney, we call the act a forgery. That steward who takes bribes from hismaster's tenants, and then, pretending the money to be his own, lends itto that master and takes bonds for it to himself, we consider guilty ofa breach of trust; and the person who commits such crimes we call acheat, a swindler, and a forger of bonds. All these offences, withoutthe least softening, under all these names, we charge upon this man. Wehave so charged in our record, we have so charged in our speeches; andwe are sorry that our language does not furnish terms of sufficientforce and compass to mark the multitude, the magnitude, and the atrocityof his crimes. 

How came it, then, that the Commons of Great Britain should becalumniated for the course which they have taken? Why should it everhave been supposed that we are actuated by revenge? I answer, There aretwo very sufficient causes: corruption and ignorance. The first disposesan innumerable multitude of people to a fellow-feeling with theprisoner. Under the shadow of his crimes thousands of fortunes have beenmade; and therefore thousands of tongues are employed to justify themeans by which these fortunes were made. When they cannot deny thefacts, they attack the accusers, --they attack their conduct, they attacktheir persons, they attack their language, in every possible manner. Ihave said, my Lords, that ignorance is the other cause of this calumnyby which the House of Commons is assailed. Ignorance produces aconfusion of ideas concerning the decorum of life, by confounding therules of private society with those of public function. To talk, as wehere talk, to persons in a mixed company of men and women, would violatethe law of such societies; because they meet for the sole purpose ofsocial intercourse, and not for the exposure, the censure, thepunishment of crimes: to all which things private societies arealtogether incompetent. In them crimes can never be regularly stated, proved, or refuted. The law has therefore appointed special places forsuch inquiries; and if in any of those places we were to apply theemollient language of drawing-rooms to the exposure of great crimes, itwould be as false and vicious in taste and in morals as to use thecriminatory language of this hall in drawing and assembling rooms wouldbe misplaced and ridiculous. Every one knows that in common societypalliating names are given to vices. Adultery in a lady is calledgallantry; the gentleman is commonly called a man of good fortune, sometimes in French and sometimes in English. But is this the tone whichwould become a person in a court of justice, calling these people to anaccount for that horrible crime which destroys the basis of society?No, my Lords, this is not the tone of such proceedings. Your Lordshipsknow that it is not; the Commons know that it is not; and because wehave acted on that knowledge, and stigmatized crimes with becomingindignation, we are said to be actuated rather by revenge than justice. 

If it should still be asked why we show sufficient acrimony to excite asuspicion of being in any manner influenced by malice or a desire ofrevenge, to this, my Lords, I answer, Because we would be thought toknow our duty, and to have all the world know how resolutely we areresolved to perform it. The Commons of Great Britain are not disposed toquarrel with the Divine Wisdom and Goodness, which has moulded uprevenge into the frame and constitution of man. He that has made us whatwe are has made us at once resentful and reasonable. Instinct tells aman that he ought to revenge an injury; reason tells him that he oughtnot to be a judge in his own cause. From that moment revenge passes fromthe private to the public hand; but in being transferred it is far frombeing extinguished. My Lords, it is transferred as a sacred trust to beexercised for the injured, in measure and proportion, by persons who, feeling as he feels, are in a temper to reason better than he canreason. Revenge is taken out of the hands of the original injuredproprietor, lest it should be carried beyond the bounds of moderationand justice. But, my Lords, it is in its transfer exposed to a danger ofan opposite description. The delegate of vengeance may not feel thewrong sufficiently: he may be cold and languid in the performance of hissacred duty. It is for these reasons that good men are taught totremble even at the first emotions of anger and resentment for their ownparticular wrongs; but they are likewise taught, if they are welltaught, to give the loosest possible rein to their resentment andindignation, whenever their parents, their friends, their country, ortheir brethren of the common family of mankind are injured. Those whohave not such feelings, under such circumstances, are base anddegenerate. These, my Lords, are the sentiments of the Commons of GreatBritain. 

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 justicein the world. But when, by the skilful hand of morality and wisejurisprudence, a foreign scion, but of the very same species, is graftedupon it, its harsh quality becomes changed, it submits to culture, and, laying aside its savage nature, it bears fruits and flowers, sweet tothe world, and not ungrateful even to heaven itself, to which itelevates its exalted head. The fruit of this wild stock is revengeregulated, but not extinguished, --revenge transferred from the sufferingparty to the communion and sympathy of mankind. This is the revenge bywhich we are actuated, and which we should be sorry, if the false, idle, girlish, novel-like morality of the world should extinguish in thebreast of us who have a great public duty to perform. 

This sympathetic revenge, which is condemned by clamorous imbecility, isso far from being a vice, that it is the greatest of all possiblevirtues, --a virtue which the uncorrupted judgment of mankind has in allages exalted to the rank of heroism. To give up all the repose andpleasures of life, to pass sleepless nights and laborious days, and, what is ten times more irksome to an ingenuous mind, to offer oneself tocalumny and all its herd of hissing tongues and poisoned fangs, in orderto free the world from fraudulent prevaricators, from cruel oppressors, from robbers and tyrants, has, I say, the test of heroic virtue, andwell deserves such a distinction. The Commons, despairing to attain theheights of this virtue, never lose sight of it for a moment. Forseventeen years they have, almost without intermission, pursued, byevery sort of inquiry, by legislative and by judicial remedy, the cureof this Indian malady, worse ten thousand times than the leprosy whichour forefathers brought from the East. Could they have done this, ifthey had not been actuated by some strong, some vehement, some perennialpassion, which, burning like the Vestal fire, chaste and eternal, neversuffers generous sympathy to grow cold in maintaining the rights of theinjured or in denouncing the crimes of the oppressor?

My Lords, the Managers for the Commons have been actuated by thispassion; my Lords, they feel its influence at this moment; and so farfrom softening either their measures or their tone, they do here, in thepresence of their Creator, of this House, and of the world, make thissolemn declaration, and nuncupate this deliberate vow: that they willever glow with the most determined and unextinguishable animosityagainst tyranny, oppression, and peculation in all, but moreparticularly as practised by this man in India; that they never willrelent, but will pursue and prosecute him and it, till they see corruptpride prostrate under the feet of justice. We call upon your Lordshipsto join us; and we have no doubt that you will feel the same sympathythat we feel, or (what I cannot persuade my soul to think or my mouth toutter) you will be identified with the criminal whose crimes you excuse, and rolled with him in all the pollution of Indian guilt, fromgeneration to generation. Let those who feel with me upon this occasionjoin 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 atsuch length on this subject. No, my Lords, I have said what I considerednecessary to instruct the public upon the principles which induced theHouse of Commons to persevere in this business with a generous warmth, and in the indignant language which Nature prompts, when great crimesare brought before men who feel as they ought to feel upon suchoccasions. 

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I now proceed, my Lords, to the next recriminatory charge, which is_delay_. I confess I am not astonished at this charge. From the firstrecords of human impatience down to the present time, it has beencomplained that the march of violence and oppression is rapid, but thatthe progress of remedial and vindictive justice, even the divine, hasalmost always favored the appearance of being languid and sluggish. Something of this is owing to the very nature and constitution of humanaffairs; because, as justice is a circumspect, cautious, scrutinizing, balancing principle, full of doubt even of itself, and fearful of doingwrong even to the greatest wrong-doers, in the nature of things itsmovements must be slow in comparison with the headlong rapidity withwhich avarice, ambition, and revenge pounce down upon the devoted preyof those violent and destructive passions. And indeed, my Lords, thedisproportion between crime and justice, when seen in the particularacts of either, would be so much to the advantage of crimes andcriminals, that we should find it difficult to defend laws andtribunals, (especially in great and arduous cases like this, ) if we didnot look, not to the _immediate_, not to the _retrospective_, but to the_provident_ operation of justice. Its chief operation is in its futureexample; and this turns the balance, upon the total effect, in favor ofvindictive justice, and in some measure reconciles a pious and humblemind to this great mysterious dispensation of the world. 

Upon the charge of delay in this particular cause, my Lords, I have onlyto say that the business before you is of immense magnitude. Theprisoner 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 couldnot be short to us, nor short to your Lordships; but when we are calledupon, as we have been daily, to sympathize with the prisoner in thatdelay, my Lords, we must tell you that we have no sympathy with him. Rejecting, as we have done, all false, spurious, and hypocriticalvirtues, we should hold it to be the greatest of all crimes to bestowupon the oppressors that pity which belongs to the oppressed. Theunhappy persons who are wronged, robbed, and despoiled have no remedybut in the sympathies of mankind; and when these sympathies are sufferedto be debauched, when they are perversely carried from the victim to theoppressor, then we commit a robbery still greater than that which wascommitted by the criminal accused. 

My Lords, we do think this process long; we lament it in every sense inwhich it ought to be lamented; but we lament still more that the Begumshave been so long without having a just punishment inflicted upon theirspoiler. We lament that Cheyt Sing has so long been a wanderer, whilethe man who drove him from his dominions is still unpunished. We aresorry that Nobkissin has been cheated of his money for fourteen years, without obtaining redress. These are our sympathies, my Lords; and thuswe reply to this part of the charge. 

My Lords, there are some matters of fact in this charge of delay which Imust 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 wereobliged to go to India, by which he has lost the benefit of theirtestimony, and that a great number of your Lordships' body were dead, bywhich 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 thecommencement of this trial, yet the body always remains entire. Theevidence before you is the same; and therefore there is no reason topresume that your final judgment will be affected by these afflictingdispensations of Providence. With regard to his witnesses, I must beg toremind your Lordships of one extraordinary fact. This prisoner has sentto India, and obtained, not testimonies, but testimonials to his generalgood behavior. He has never once applied, by commission or otherwise, tofalsify any one fact that is charged upon, him, --no, my Lords, not one. Therefore that part of his petition which states the injury he hasreceived from the Commons of Great Britain is totally false andgroundless. For if he had any witnesses to examine, he would not havefailed to examine them; if he had asked for a commission to receivetheir depositions, a commission would have been granted; if, without acommission, he had brought affidavits to facts, or regular recordedtestimony, the Commons of Great Britain would never have rejected suchevidence, even though they could not have cross-examined it. 

Another complaint is, that many of his witnesses were obliged to leaveEngland before he could make use of their evidence. My Lords, no delayin the trial has prevented him from producing any evidence; for we werewilling that any of his witnesses should be examined at any time mostconvenient to himself. If many persons connected with his measures aregone to India, during the course of his trial, many others have returnedto England. Mr. Larkins returned. Was the prisoner willing to examinehim? No: and it was nothing but downright shame, and the presumptionswhich he knew would be drawn against him, if he did not call thiswitness, which finally induced him to make use of his evidence. Weexamined Mr. Larkins, my Lords; we examined all the prisoner'switnesses; your Lordships have their testimony; and down to this veryhour he has not put his hand upon any one whom he thought a proper andessential witness to the facts, or to any part of the cause, whoseexamination has been denied him; nor has he even stated that any man, ifbrought here, would prove such and such points. No, not one word to thiseffect has ever been stated by the prisoner. 

There is, my Lords, another case, which was noticed by my honorablefellow Manager yesterday. Mr. Belli, the confidential secretary of theprisoner, was agent and contractor for stores; and this raised asuspicion that the contracts were held by him for the prisoner'sadvantage. Mr. Belli was here during the whole time of the trial, andsix weeks after we had closed our evidence. We had then no longer thearrangement of the order of witnesses, and he might have called whom hepleased. With the full knowledge of these circumstances, that witnessdid he suffer to depart for India, if he did not even encourage hisdeparture. This, my Lords, is the kind of damage which he has sufferedby the want of witnesses, through the protraction of this trial. 

But the great and serious evil which he complains of, as beingoccasioned by our delay, is of so extraordinary a nature that I mustrequest your Lordships to examine it with extraordinary strictness andattention. In the petition before your Lordships, the prisoner assertsthat he was under the necessity, through his counsel and solicitors, "ofcollecting and collating from the voluminous records of the Company thewhole history of his public life, in order to form a complete defence toevery allegation which the Honorable House of Commons had preferredagainst him, and that he has expended upwards of thirty thousand poundsin preparing the materials of his defence. "

It is evident, my Lords, that the expenditure of this thirty thousandpounds is not properly connected with the delay of which he complains;for he states that he had incurred this loss merely in collecting andcollating materials, previous to his defence before your Lordships. Ifthis were true, and your Lordships were to admit the amount as a ruleand estimate by which the aggregate of his loss could be ascertained, the application of the rule of three to the sum and time given wouldbring out an enormous expenditure in the long period which has elapsedsince the commencement of the trial, --so enormous, that, if thismonstrous load of oppression has been laid upon him by the delay of theCommons, 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 welay it as a charge before you. Your own Journals have recorded thedocument, in which the prisoner complains bitterly of the House ofCommons, and indeed of the whole judicature of the country, --a complaintwhich your Lordships will do well to examine. 

When we first came to a knowledge of this petition, which was not tillsome time after it was presented, I happened to have conversation with anoble 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 mentionLord Suffolk, I name a peer whom honor, justice, veracity, and everyvirtue that distinguishes the man and the peer would claim for theirown. My Lord Suffolk told me, that, in a conversation with the late LordDover, who brought the prisoner's petition into your House, he could notrefrain from expressing his astonishment at that part of the petitionwhich related to the expense Mr. Hastings had been at; and particularlyas a complaint had been made in the House of the enormous expense of theprosecution, which at that time had only amounted to fourteen thousandpounds, although the expense of the prosecutor is generally greater thanthat of the defendant, and public proceedings more expensive thanprivate ones. Lord Dover said, that, before he presented the petition, he had felt exactly in the same manner; but that Mr. Hastings assuredhim that six thousand pounds had been paid to copying clerks in theIndia House, and that from this circumstance he might judge of the otherexpenses. Lord Dover was satisfied with this assurance, and presentedthe petition, which otherwise he should have declined to do, on accountof the apparent enormity of the allegation it contained. At the timewhen Lord Suffolk informed me of these particulars, (with a good deal ofsurprise and astonishment, ) I had not leisure to go down to the IndiaHouse in order to make inquiries concerning them, but I afterwards askedthe Secretary, Mr. Hudson, to whom _we_ had given a handsome reward, what sums he had received from Mr. Hastings for his services upon thisoccasion, and the answer was, "Not one shilling. " Not one shilling hadMr. Hudson received from Mr. Hastings. The clerks of the Companyinformed us that the Court of Directors had ordered that every paperwhich Mr. Hastings wanted should be copied for him gratuitously, --andthat, if any additional clerks were wanting for the effectual executionof his wishes, the expense would be defrayed by the Directors. Hearingthis account, I next inquired what _expedition money_ might have beengiven 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 theyhad received in little driblets to the amount of ninety-five pounds, orthereabouts. In this way the account stood when I made this inquiry, which was at least half a year after the petition had been presented toyour Lordships. Thus the whole story of the six thousand pounds wasabsolutely 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. YourLordships will now judge whether you have been abused by falseallegations or not, --allegations which could scarcely admit of beingtrue, and which upon the best inquiry I found absolutely false; and Iappeal to the testimony of the noble lord, who is now living, for thetruth of the account he received from the worthy and respectable peerwhose loss the nation has to bewail. 

There are many other circumstances of fraud and falsehood attending thispetition, (we must call things by their proper names, my Lords, )--thereare, I say, many circumstances of fraud and falsehood. We know it tohave been impossible, at the time of presenting this petition, that thisman should have expended thirty thousand pounds in the preparation ofmaterials for his defence; and your Lordships' justice, together withthe credit of the House of Commons, are concerned in the discovery ofthe truth. There is, indeed, an ambiguous word in the petition. Heasserts that he is _engaged_ for the payment of that sum. We asked theclerks of the India House whether he had given them any bond, note, security, or promise of payment: they assured us that he had not: theywill be ready to make the same assurance to your Lordships, when youcome to inquire into this matter, which before you give judgment wedesire and claim that you will do. All is concealment and mystery on theside of the prisoner; all is open and direct with us. We are desirousthat everything which is concealed may be brought to light. 

In contradiction, then, to this charge of oppression and of an attemptto ruin his fortune, your Lordships will see that at the time when hemade this charge he had not been, in fact, nor was for a long timeafter, one shilling out of pocket. But some other person had becomesecurity to his attorney for him. What, then, are we to think of thesemen of business, of these friends of Mr. Hastings, who, when he ispossessed of nothing, are contented to become responsible for thirtythousand pounds, (was it thirty thousand pounds out of the bullockcontracts?)--responsible, I say, for this sum, in order to maintain thissuit previous to its actual commencement, and who consequently must beso engaged for every article of expense that has followed from that timeto this?

Thus much we have thought it necessary to say upon this part of therecriminatory charge of delay. With respect to the delay in general, weare 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 toyour Lordships. The means belong to us as well as to you of removingthese charges. Your Lordships may inquire upon oath, as we have done inour committee, into all the circumstances of these allegations. I hopeyour Lordships will do so, and will give the Commons an opportunity ofattending and assisting at this most momentous and important inquiry. 

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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 dealof irrelevant matter, which could not be proved regularly in the courseof 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 greatabuses had prevailed in India, that the Company had entered intocovenants with their servants respecting those abuses, that an act ofParliament was made to prevent their recurrence, and that Mr. Hastingsstill continued in their practice. Now, my Lords, having stated this, nothing could be more regular, more proper, and more pertinent, than forus to justify both the covenants required by the Company and the actmade to prevent the abuses which existed in India. We therefore wentthrough those abuses; we stated them, and were ready to prove everymaterial word and article in them. Whether they were personally relevantor irrelevant to the prisoner we cared nothing. We were to make out fromthe records of the House (which records I can produce, whenever I amcalled upon for them) all these articles of abuse and grievance; and wehave stated these abuses as the grounds of the Company's provisionalcovenants with its servants, and of the act of Parliament. We havestated them under two heads, violence and corruption: for these crimeswill be found, my Lords, in almost every transaction with the nativepowers; and the prisoner is directly or indirectly involved in everypart of them. If it be still objected, that these crimes are irrelevantto the charge, we answer, that we did not introduce them as matter ofcharge. We say they were not irrelevant to the proof of the preamble ofour charge, which preamble is perfectly relevant in all its parts. Thatthe matters stated in it are perfectly true we vouch the House ofCommons, we vouch the very persons themselves who were concerned in thetransactions. When Arabic authors are quoted, and Oriental tales toldabout _flashes of lightning_ and _three seals_, we quote the veryparties themselves giving this account of their own conduct to acommittee of the House of Commons. 

Your Lordships will remember that a most reverend prelate, who cannot benamed without every mark of respect and attention, conveyed a petitionto your Lordships from a gentleman concerned in one of those narratives. Upon your Lordships' table that petition still lies. For the productionof this narrative we are not answerable to this House; your Lordshipscould not make us answerable to him; but we are answerable to our ownHouse, we are answerable to our own honor, we are answerable to all theCommons of Great Britain for whatever we have asserted in their name. Accordingly, General Burgoyne, then a member of this Committee ofManagers, and myself, went down into the House of Commons; we thererestated the whole affair; we desired that an inquiry should be madeinto it, at the request of the parties concerned. But, my Lords, theyhave never asked for inquiry from that day to this. Whenever he or theywho are criminated (not by us, but in this volume of Reports that is inmy hand) desire it, the House will give them all possible satisfactionupon 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 notopen to him, and has he had no friends in the House of Commons, to callupon the House, during the whole period of this proceeding, to examineinto the particulars adduced in justification of the preamble of thecharge against him, in justification of the covenants of the Company, injustification of the act of Parliament? It was in his power to do it; itis in his power still; and if it be brought before that tribunal, towhich I and my fellow Managers are alone accountable, we will lay beforethat tribunal such matters as will sufficiently justify our mode ofproceeding, and the resolution of the House of Commons. I will not, therefore, enter into the particulars (because they cannot be enteredinto by your Lordships) any further than to say, that, if we had everbeen called upon to prove the allegations which we have made, not in thenature of a charge, but as bound in duty to this Court, and in justiceto ourselves, we should have been ready to enter into proof. We offeredto do so, and we now repeat the offer. 

 * * * * *

There was another complaint in the prisoner's petition, which did notapply to the words of the preamble, but to an allegation in the chargeconcerning abuses in the revenue, and the ill consequences which arosefrom them. I allude to those shocking transactions, which nobody canmention without horror, in Rampore and Dinagepore, during the governmentof Mr. Hastings, and which we attempted to bring home to him. What didhe do in this case? Did he endeavor to meet these charges fairly, as hemight have done? No, my Lords: what he said merely amounted tothis:--"Examination into these charges would vindicate my reputationbefore the world; but I, who am the guardian of my own honor and my owninterests, choose to avail myself of the rules and orders of thisHouse, and I will not suffer you to enter upon that examination. "

My Lords, we admit, you are the interpreters of your own rules andorders. We likewise admit that our own honor may be affected by thecharacter of the evidence which we produce to you. But, my Lords, theywho withhold their defence, who suffer themselves, as they say, to becruelly criminated by unjust accusation, and yet will not permit theevidence of their guilt or innocence to be produced, are themselves thecauses of the irrelevancy of all these matters. It cannot justly becharged on us; for we have never offered any matter here which we didnot declare our readiness upon the spot to prove. Your Lordships did notthink fit to receive that proof. We do not now censure your Lordshipsfor your determination: that is not the business of this day. We referto your determination for the purpose of showing the falsehood of theimputation which the prisoner has cast upon us, of having oppressed himby delay and irrelevant matter. We refer to it in order to show that theoppression rests with himself, that it is all his own. 

Well, but Mr. Hastings complained also to the House of Commons. Has hepursued the complaint? No, he has not; and yet this prisoner, and thesegentlemen, his learned counsel, have dared to reiterate their complaintsof 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 yourLordships: and therefore, without presuming to blame yourdetermination, I repeat, that we throw the blame directly upon himself, when he complains that his private character suffers without the meansof defence, since he objects to the use of means of defence which are athis disposal. 

Having gone through this part of the prisoner's recriminatory charge, Ishall close my observations on his demeanor, and defer my remarks on hiscomplaint of our ingratitude until we come to consider his set-off ofservices. 

 * * * * *

The next subject for your Lordships' consideration is the principle ofthe prisoner's defence. And here we must observe, that, either byconfession or conviction, we are possessed of the facts, and perfectlyagreed upon the matter at issue between us. In taking a view of the lawsby which you are to judge, I shall beg leave to state to you upon whatprinciples of law the House of Commons has criminated him, and upon whatprinciples of law, or pretended law, he justifies himself: for these arethe matters at issue between us; the matters of fact, as I have justsaid, being determined either by confession on his part or by proof onours. 

My Lords, we acknowledge that Mr. Hastings was invested withdiscretionary power; but we assert that he was bound to use that poweraccording to the established rules of political morality, humanity, andequity. In all questions relating to foreign powers he was bound to actunder the Law of Nature and under the Law of Nations, as it isrecognized by the wisest authorities in public jurisprudence; in hisrelation to this country he was bound to act according to the laws andstatutes 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 boundto act according to the largest and most liberal construction of theirlaws, rights, usages, institutions, and good customs; and we furthermoreassert, that he was under an express obligation to yield implicitobedience to the Court of Directors. It is upon these rules andprinciples the Commons contend that Mr. Hastings ought to have regulatedhis government; and not only Mr. Hastings, but all other governors. Itis upon these rules that he is responsible; and upon these rules, andthese 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 theprinciples which I have stated. We never will nor can we abandon them;and we therefore do not supplicate your Lordships upon this head, butclaim and demand of right, that you will judge him upon thoseprinciples, and upon no other. If once they are evaded, you can have norule for your judgment but your caprices and partialities. 

Having thus stated the principles upon which the Commons hold him andall governors responsible, and upon which we have grounded ourimpeachment, and which must be the grounds of your judgment, (and yourLordships will not suffer any other ground to be mentioned to you, ) wewill now tell you what are the grounds of his defence. 

He first asserts, that he was possessed of an arbitrary and despoticpower, restrained by no laws but his own will. He next says, that "therights of the people he governed in India are nothing, and that therights of the government are everything. " The people, he asserts, haveno liberty, no laws, no inheritance, no fixed property, no descendableestate, no subordinations in society, no sense of honor or of shame, andthat they are only affected by punishment so far as punishment is acorporal infliction, being totally insensible of any difference betweenthe punishment of man and beast. These are the principles of his Indiangovernment, which Mr. Hastings has avowed in their full extent. Wheneverprecedents are required, he cites and follows the example of avowedtyrants, of Aliverdy Khân, Cossim Ali Khân, and Sujah Dowlah. With anavowal of these principles he was pleased first to entertain the Houseof Commons, the _active_ assertors and conservators of the rights, liberties, and laws of his country; and then to insist upon them morelargely and in a fuller detail before this awful tribunal, the _passive_judicial conservator of the same great interests. He has brought outthese blasphemous doctrines in this great temple of justice, consecratedto law and equity for a long series of ages. He has brought them forthin Westminster Hall, in presence of all the Judges of the land, who areto execute the law, and of the House of Lords, who are bound as itsguardians not to suffer the words "arbitrary power" to be mentionedbefore them. For I am not again to tell your Lordships, that arbitrarypower is treason in the law, --that to mention it with law is to commit acontradiction in terms. They cannot exist in concert; they cannot holdtogether for a moment. 

Let us now hear what the prisoner says. "The sovereignty which they [thesubahdars, or viceroys of the Mogul empire] assumed, it fell to my lot, very unexpectedly, to exert; and whether or not such power, or powers ofthat nature, were delegated to me by any provisions of any act ofParliament I confess myself too little of a lawyer to pronounce. I onlyknow that the acceptance of the sovereignty of Benares, &c. , is notacknowledged or admitted by any act of Parliament; and yet, by theparticular interference of the majority of the Council, the Company isclearly and indisputably seized of that sovereignty. If, therefore, the_sovereignty_ of Benares, as ceded to us by the Vizier, have _any rightswhatever_ annexed to it, and be not a mere empty word without meaning, those rights must be such as are held, countenanced, and established bythe law, custom, and usage of the Mogul empire, and not by theprovisions of any British act of Parliament hitherto enacted. _Thoserights_, and none other, I have been the involuntary instrument ofenforcing. And if any future act of Parliament shall positively or byimplication tend to annihilate those very rights, or their exertion, asI have exerted them, I much fear that the boasted sovereignty ofBenares, which was held up as an acquisition almost obtruded on theCompany against my consent and opinion, (for I acknowledge that eventhen I foresaw many difficulties and inconveniences in its futureexercise, )--I fear, I say, that this sovereignty will be found a burdeninstead of a benefit, a heavy clog rather than a precious gem to itspresent possessors: I mean, unless the whole of our territory in thatquarter shall be rounded and made an uniform compact body by one grandand systematic arrangement, --such an arrangement as shall do away allthe mischiefs, doubts, and inconveniences (both to the governors andthe governed) arising from the variety of tenures, rights, and claims inall cases of landed property and feudal jurisdiction in India, from theinformality, invalidity, and instability of all engagements in sodivided and unsettled a state of society, and from the unavoidableanarchy and confusion of different laws, religions, and prejudices, moral, civil, and political, all jumbled together in one unnatural anddiscordant mass. Every part of Hindostan has been constantly exposed tothese and similar disadvantages ever since the Mahometan conquests. TheHindoos, who never incorporated with their conquerors, were kept inorder only by the strong hand of power. The constant necessity ofsimilar exertions would increase at once their energy and extent. Sothat rebellion itself is the parent and promoter of _despotism_. Sovereignty in India implies nothing else. For I know not how we canform an estimate of its powers, but from its visible effects; and thoseare everywhere the same from Cabool to Assam. The whole history of Asiais nothing more than precedents to prove the invariable exercise ofarbitrary power. To all this I strongly alluded in the minutes Idelivered in Council, when the treaty with the new Vizier was on foot in1775; and I wished to make Cheyt Sing independent, because in Indiadependence included a thousand evils, many of which I enumerated at thattime, and they are entered in the ninth clause of the first section ofthis charge. I knew the powers with which an Indian sovereignty isarmed, and the dangers to which tributaries are exposed. I knew, that, from the history of Asia, and from the very nature of mankind, thesubjects of a despotic empire are always vigilant for the moment torebel, and the sovereign is ever jealous of rebellious intentions. Azemindar is an Indian subject, and as such exposed to the common lot ofhis fellows. _The mean and depraved state of a mere zemindar_ istherefore this very dependence above mentioned on a despotic government, this very proneness to shake off his allegiance, and this very exposureto continual danger from his sovereign's jealousy, which are consequenton the political state of Hindostanic governments. Bulwant Sing, if hehad been, and Cheyt Sing, as long as he was, a zemindar, stood exactlyin this _mean and depraved state_ by the constitution of his country. Idid not make it for him, but would have secured him from it. Those whomade him a zemindar entailed upon him the consequences of so mean anddepraved a tenure. Aliverdy Khân and Cossim Ali fined all theirzemindars on the necessities of war, and on every pretence either ofcourt necessity or court extravagance. "

I beseech your Lordships seriously to look upon the whole nature of theprinciples upon which the prisoner defends himself. He appeals to thecustom and usage of the Mogul empire; and the constitution of thatempire is, he says, arbitrary power. He says, that he does not knowwhether any act of Parliament bound him not to exercise this arbitrarypower, and that, if any such act should in future be made, it would bemischievous and ruinous to our empire in India. Thus he has at oncerepealed all preceding acts, he has annulled by prospect every futureact you can make; and it is not in the power of the Parliament of GreatBritain, without ruining the empire, to hinder his exercising thisdespotic authority. All Asia is by him disfranchised at a stroke. Itsinhabitants have no rights, no laws, no liberties; their state is meanand depraved; they may be fined for any purpose of court extravagance orprodigality, --or as Cheyt Sing was fined by him, not only upon everywar, but upon every pretence of war. 

This is the account he gives of his power, and of the people subject tothe British government in India. We deny that the act of Parliament gavehim any such power; we deny that the India Company gave him any suchpower, or that they had ever any such power to give; we even deny thatthere exists in all the human race a power to make the government of anystate dependent upon individual will. We disclaim, we reject all suchdoctrines with disdain and indignation; and we have brought them up toyour Lordships to be tried at your bar. 

What must be the condition of the people of India, governed, as theyhave been, by persons who maintain these principles as maxims ofgovernment, and not as occasional deviations caused by the irregularwill of man, --principles by which the whole system of society is to becontrolled, 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: forMr. Hastings says, that the people may be fined, that they may beexiled, that they may be imprisoned, and that even their lives aredependent upon the mere will of their foreign master; and that he, theCompany's Governor, exercised that will under the authority of thiscountry. 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 ourgovernment. The moment he came into a state of dependence upon theBritish government, all these evils attached upon him. --It is, " he adds, "disagreeable to me to exert such powers; but I know they must beexerted; 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 beour future moral and political condition, when the persons who come fromthat school of pride, insolence, corruption, and tyranny are moreintimately mixed up with us of purer morals. Nothing but contaminationcan be the result, nothing but corruption can exist in this country, unless we expunge this doctrine out of the very hearts and souls of thepeople. It is not to the gang of plunderers and robbers of which I saythis man is at the head, that we are only, or indeed principally, tolook. Every man in Great Britain will be contaminated and must becorrupted, if you let loose among us whole legions of men, generationafter generation, tainted with these abominable vices, and avowing thesedetestable principles. It is, therefore, to preserve the integrity andhonor of the Commons of Great Britain, that we have brought this man toyour Lordships' bar. 

When these matters were first explained to your Lordships, and stronglyenforced by abilities greater than I can exert, there was something likecompunction shown by the prisoner: but he took the most strange mode tocover his guilt. Upon the cross-examination of Major Scott, hediscovered all the engines of this Indian corruption. Mr. Hastings gotthat witness to swear that this defence of his, from which the passagesI have read to your Lordships are extracted, was not his, but that itwas 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, andtherefore that it would be wrong to press it upon him. Good God! myLords, what shall we say in this stage of the business? The prisoner putin an elaborate defence: he now disclaims that defence. He told us thatit was of his own writing, that he had been able to compose it in fivedays; and he now gets five persons to contradict his own assertions, andto disprove on oath his most solemn declarations. 

My Lords, this business appears still more alarming, when we find notonly Mr. Hastings, but his whole Council, engaged in it. I pray yourLordships to observe, that Mr. Halhed, a person concerned with Mr. Hastings in compiling a code of Gentoo laws, is now found to be one ofthe persons to whom this very defence is attributed which contains suchdetestable and abominable doctrines. But are we to consider the contentsof 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 givenhere to an impeachment of the Commons, or when a plea is made to anindictment, that it is drawn by the defendant's counsel, and thereforeis not his? Did we not all hear him read this defence in part at ourbar?--did we not see him hand it to his secretary to have it read by hisson?--did he not then hear it read from end to end?--did not he himselfdesire it to be printed, (for it was no act of ours, ) and did he notsuperintend and revise the press?--and has any breath but his ownbreathed upon it? No, my Lords, the whole composition is his, by writingor adoption; and never, till he found it pressed him in this House, never, till your Lordships began to entertain the same abhorrence of itthat 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 ourcharge, and after he had got a person to forswear them for him, and toprove him to have told falsehoods of the grossest kind to the House ofCommons, he again adheres to this defence. The dog returned to hisvomit. After having vomited out his vile, bilious stuff of arbitrarypower, and afterwards denied it to be his, he gets his counsel in thisplace to resort to the loathsome mess again. They have thought proper, my Lords, to enter into an extended series of quotations from books oftravellers, for the purpose of showing that despotism was the onlyprinciple of government acknowledged in India, --that the people have nolaws, no rights, no property movable or immovable, no distinction ofranks, nor any sense of disgrace. After citing a long line of travellersto this effect, they quote Montesquieu as asserting the same facts, declaring that the people of India had no sense of honor, and were onlysensible of the whip as far as it produced corporal pain. They thenproceed to state that it was a government of misrule, productive of nohappiness to the people, and that it so continued until subverted by thefree government of Britain, --namely, the government that Mr. Hastingsdescribes as having himself exercised there. 

My Lords, if the prisoner can succeed in persuading us that these peoplehave no laws, no rights, not even the common sentiments and feeling ofmen, he hopes your interest in them will be considerably lessened. Hewould persuade you that their sufferings are much assuaged by theirbeing 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 isleft to them than grieved for the much that has been ravished from themby his cruelty and his avarice. This inference makes it very necessaryfor me, before I proceed further, to make a few remarks upon this partof the prisoner's conduct, which your Lordships must have already feltwith astonishment, perhaps with indignation. This man, who passedtwenty-five years in India, who was fourteen years at the head of hisgovernment, master of all the offices, master of all the registers andrecords, master of all the lawyers and priests of all this empire, fromthe highest to the lowest, instead of producing to you the fruits of somany years' local and official knowledge upon that subject, has calledout a long line of the rabble of travellers to inform you concerning theobjects of his own government. That his learned counsel should beignorant of those things is a matter of course. That, if left tohimself, the person who has produced all this stuff should, in pursuitof his darling arbitrary power, wander without a guide, or with falseguides, is quite natural. But your Lordships must have heard withastonishment, that, upon points of law relative to the tenure of lands, instead of producing any law document or authority on the usages andlocal customs of the country, he has referred to officers in the army, colonels of artillery and engineers, to young gentlemen just come fromschool, not above three or four years in the country. Good God! wouldnot one rather have expected to hear him put all these travellers toshame by the authority of a man who had resided so long in the supremesituation of government, --to set aside all these wild, loose, casual, and silly observations of travellers and theorists? On the contrary, asif he was ignorant of everything, as if he knew nothing of India, as ifhe had dropped from the clouds, he cites the observations of everystranger who had been hurried in a palanquin through the country, capable or incapable of observation, to prove to you the nature of thegovernment, and of the power he had to exercise. 

My Lords, the Commons of Great Britain are not disposed to resort to theridiculous relations of travellers, or to the wild systems whichingenious men have thought proper to build on their authority. We willtake another mode. We will undertake to prove the direct contrary of hisassertions in every point and particular. We undertake to do this, because your Lordships know, and because the world knows, that, if yougo into a country where you suppose man to be in a servilestate, --where, the despot excepted, there is no one person who can liftup his head above another, --where all are a set of vile, miserableslaves, prostrate and confounded in a common servitude, having nodescendible lands, no inheritance, nothing that makes man feel proud ofhimself, or that gives him honor and distinction with others, --thisabject degradation will take from you that kind of sympathy whichnaturally attaches you to men feeling like yourselves, to men who havehereditary dignities to support, and lands of inheritance to maintain, as you peers have; you will, I say, no longer have that feeling whichyou ought to have for the sufferings of a people whom you suppose to behabituated to their sufferings and familiar with degradation. This makesit absolutely necessary for me to refute every one of thesemisrepresentations; and whilst I am endeavoring to establish the rightsof these people, in order to show in what manner and degree they havebeen violated, I trust that your Lordships will not think that the timeis lost: certainly I do not think that my labor will be misspent inendeavoring to bring these matters fully before you. 

In determining to treat this subject at length, I am also influenced bya strong sense of the evils that have attended the propagation of thesewild, groundless, and pernicious opinions. A young man goes to Indiabefore 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 inthe world! but if we go to India with an idea of the mean, degradedstate of the people that we are to govern, and especially if we go withthese impressions at an immature age, we know, that, according to theordinary course of human nature, we shall not treat persons well whom wehave learnt to despise. We know that people whom we suppose to haveneither laws or rights will not be treated by us as a people who havelaws and rights. This error, therefore, for our sake, for your sake, forthe sake of the Indian public, and for the sake of all those who shallhereafter go in any station to India, I think it necessary to disprovein every point. 

I mean to prove the direct contrary of everything that has been said onthis subject by the prisoner's counsel, or by himself. I mean to provethat the people of India have laws, rights, and immunities; that theyhave property, movable and immovable, descendible as well as occasional;that they have property held for life, and that they have it as wellsecured to them by the laws of their country as any property is securedin this country; that they feel for honor, not only as much as yourLordships can feel, but with a _more_ exquisite and poignant sense thanany people upon earth; and that, when punishments are inflicted, it isnot the lash they feel, but the disgrace: in short, I mean to prove thatevery word which Montesquieu has taken from idle and inconsideratetravellers is absolutely false. 

The people of India are divided into three kinds: the original nativesof the country, commonly called Gentoos; the descendants of the Persiansand Arabians, who are Mahometans; and the descendants of the Moguls, whooriginally had a religion of their own, but are now blended with theother inhabitants. 

The primeval law of that country is the Gentoo law; and I refer yourLordships to Mr. Halhed's translation of that singular code, --a workwhich I have read with all the care that such an extraordinary view ofhuman affairs and human constitutions deserves. I do not know whetherMr. Halhed's compilation is in evidence before your Lordships, but I doknow that it is good authority on the Gentoo law. Mr. Hastings, whoinstructed his counsel to assert that the people have "no rights, nolaw, " ought to be well acquainted with this work, because he claimedfor a while the glory of the compilation, although Nobkissin, as yourLordships remember, was obliged to pay the expense. This book, acompilation of probably the most ancient laws in the world, if we exceptthe Mosaic, has in it the duty of the magistrate and the duty of allranks of subjects most clearly and distinctly ascertained; and I willgive up the whole cause, if there is, from one end to the other of thiscode, any sort of arbitrary power claimed or asserted on the part of themagistrate, or any declaration that the people have no rights ofproperty. No: it asserts the direct contrary. 

First, the people are divided into classes and ranks, with more accuracyof distinction than is used in this country, or in any other countryunder heaven. Every class is divided into families, some of whom aremore distinguished and more honorable than others; and they all haverights, privileges, and immunities belonging to them. Even in cases ofconquest, no confiscation is to take place. A Brahmin's estate comes bydescent 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 connectedwith him in the Brahminical caste. There are other immunities declaredto belong to this caste, in direct contradiction to what has beenasserted by the prisoner. In no case shall a Brahmin suffer death; in nocase shall the property of a Brahmin, male or female, be confiscated forcrime, or escheat for want of heirs. The law then goes on to othercastes, and gives to each its property, and distinguishes them withgreat accuracy of discrimination. 

Mr. Hastings says that there is no inheritable property among them. Nowyou have only to look at page 27, chapter the second, the title ofwhich, is, _Of the Division of Inheritable Property_. There, after goingthrough all the nicety of pedigree, it is declared, that, "when afather, or grandfather, a great-grandfather, or any relations of thatnature, decease, or lose their caste, or renounce the world, or aredesirous to give up their property, their sons, grandsons, great-grandsons, and other natural heirs, may divide and assume theirglebe-lands, orchards, jewels, corals, clothes, furniture, cattle, andbirds, and all the estate, real and personal. " My Lords, this lawrecognizes this kind of property; it regulates it with the nicestaccuracy of distinction; it settles the descent of it in every part andcircumstance. It nowhere asserts (but the direct contrary is positivelyasserted) that the magistrate has any power whatever over property. Itstates that it is the magistrate's duty to protect it; that he is boundto govern by law; that he must have a council of Brahmins to assist himin every material act that he does: in short, my Lords, there is noteven a trace of arbitrary power in the whole system. 

My Lords, I will mention one article, to let you see, in a very fewwords, that these Gentoos not only have an inheritance, but that the lawhas established a right of _acquiring_ possession in the property ofanother by prescription. The passage stands thus:--"If there be a personwho is not a minor, " (a man ceases to be a minor at fifteen years ofage, ) "nor impotent, nor diseased, nor an idiot, nor so lame as not tohave power to walk, nor blind, nor one who, on going before amagistrate, is found incapable of distinguishing and attending to hisown concerns, and who has not given to another person power to employand to use his property, --if, in the face of any such person, anotherman has applied to his own use, during the space of twenty years, theglebe-land or houses or orchards of that person, without let ormolestation from him, from the twenty-first year the property becomesinvested in the person so applying such things to his own use; and anyclaim of the first person above mentioned upon such glebe-[land or?]houses or orchards shall by no means stand good: but if the personbefore mentioned comes under any of the circumstances herein beforedescribed, his claim in that case shall stand good. " Here you see, myLords, that possession shall by prescription stand good against theclaims of all persons who are not disqualified from making their claims. 

I might, if necessary, show your Lordships that the highest magistrateis subject to the law; that there is a case in which he is finable; thatthey have established rules of evidence and of pleading, and, in short, all the rules which have been formed in other countries to prevent thisvery 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 thepeers, and of all the judges of this land, that the people of India haveno laws whatever. 

I do not mean to trouble your Lordships with more extracts from thisbook. I recommend it to your Lordships' reading, --when you will find, that, so far from the magistrate having any power either to imprisonarbitrarily or to fine arbitrarily, the rules of fines are laid downwith ten thousand times more exactness than with us. If you here findthat the magistrate has any power to punish the people with arbitrarypunishment, to seize their property, or to disfranchise them of anyrights or privileges, I will readily admit that Mr. Hastings has laiddown good, sound doctrine upon this subject. There is his own book, acompilation of their laws, which has in it not only good and excellentpositive rules, but a system of as enlightened jurisprudence, withregard to the body and substance of it, as perhaps any nation everpossessed, --a system which must have been composed by men of highlycultivated understandings. 

As to the travellers that have been quoted, absurd as they are in theground of their argument, they are not less absurd in their reasonings. For, having first laid it down that there is no property, and that thegovernment is the proprietor of everything, they argue, inferentially, that they have no laws. But if ever there were a people that seem to beprotected with care and circumspection from all arbitrary power, both inthe executive and judicial department, these are the people that seem tobe so protected. 

I could show your Lordships that they are so sensible of honor, thatfines are levied and punishment inflicted according to the rank of theculprit, and that the very authority of the magistrate is dependent ontheir rank. That the learned counsel should be ignorant of these thingsis natural enough. They are concerned in the gainful part of theirprofession. If they know the laws of their own country, which I dare saythey do, it is not to be expected that they should know the laws of anyother. But, my Lords, it is to be expected that the prisoner should knowthe Gentoo laws: for he not only cheated Nobkissin of his money to getthese laws translated, but he took credit for the publication of thework as an act of public spirit, after shifting the payment from himselfby fraud and peculation. All this has been proved by the testimonies ofMr. Auriol and Mr. Halhed before your Lordships. 

We do not bring forward this book as evidence of guilt or innocence, butto show the laws and usages of the country, and to prove the prisoner'sknowledge of them. 

From the Gentoo we will proceed to the Tartarian government of India, agovernment established by conquest, and therefore not likely to bedistinguished by any marks of extraordinary mildness towards theconquered. The book before me will prove to your Lordships that the headof this government (who is falsely supposed to have a despoticauthority) is absolutely elected to his office. Tamerlane was elected;and Genghis Khân particularly valued himself on improving the laws andinstitutions of his own country. These laws we only have imperfectly inthis book; but we are told in it, and I believe the fact, that heforbade, under pain of death, any prince or other person to presume tocause himself to be proclaimed Great Khân or Emperor, without beingfirst duly elected by the princes lawfully assembled in general diet. Hethen established the privileges and immunities granted to theTunkawns, --that is, to the nobility and gentry of the country, --andafterwards published most severe ordinances against governors who failedin doing their duty, but principally against those who commanded in fardistant provinces. This prince was in this case, what I hope yourLordships will be, a very severe judge of the governors of countriesremote from the seat of the government. 

My Lords, we have in this book sufficient proof that a Tartariansovereign could not obtain the recognition of ancient laws, or establishnew ones, without the consent of his parliament; that he could notascend the throne without being duly elected; and that, when so elected, he was bound to preserve the great in all their immunities, and thepeople in all their rights, liberties, privileges, and properties. Wefind these great princes restrained by laws, and even making wise andsalutary regulations for the countries which they conquered. We findGenghis Khân establishing one of his sons in a particularoffice, --namely, conservator of those laws; and he has ordered that theyshould not only be observed in his time, but by all posterity; andaccordingly they are venerated at this time in Asia. If, then, this veryGenghis Khân, if Tamerlane, did not assume arbitrary power, what are youto think of this man, so bloated with corruption, so bloated with theinsolence of unmerited power, declaring that the people of India have norights, no property, no laws, --that he could not be bound even by anEnglish act of Parliament, --that he was an arbitrary sovereign in India, and could exact what penalties he pleased from the people, at theexpense of liberty, property, and even life itself? Compare this man, this compound of pride and presumption, with Genghis Khân, whoseconquests were more considerable than Alexander's, and yet who made thelaws the rule of his conduct; compare him with Tamerlane, whoseInstitutes I have before me. I wish to save your Lordships' time, or Icould show you in the life of this prince, that he, violent as hisconquests were, bloody as all conquests are, ferocious as a Mahometanmaking his crusades for the propagation of his religion, he yet knew howto govern his unjust acquisitions with equity and moderation. If any mancould be entitled to claim arbitrary power, if such a claim could bejustified by extent of conquest, by splendid personal qualities, bygreat learning and eloquence, Tamerlane was the man who could have madeand justified the claim. This prince gave up all his time not employedin conquests to the conversation of learned men. He gave himself to allstudies that might accomplish a great man. Such a man, I say, might, ifany may, claim arbitrary power. But the very things that made him greatmade him sensible that he was but a man. Even in the midst of all hisconquests, his tone was a tone of humility; he spoke of laws as everyman must who knows what laws are; and though he was proud, ferocious, and violent in the achievement of his conquests, I will venture to sayno prince ever established institutes of civil government more honorableto himself than the Institutes of Timour. I shall be content to bebrought to shame before your Lordships, if the prisoner at your bar canshow me one passage where the assumption of arbitrary power is evenhinted at by this great conqueror. He declares that the nobility ofevery country shall be considered as his brethren, that the people shallbe acknowledged as his children, and that the learned and the dervishesshall be particularly protected. But, my Lords, what he particularlyvalued himself upon I shall give your Lordships in his own words:--"Idelivered the oppressed from the hand of the oppressor; and after proofof the oppression, whether on the property or the person, the decisionwhich I passed between them was agreeable to the sacred law; and I didnot cause any one person to suffer for the guilt of another. "[95]

My Lords, I have only further to inform your Lordships that theseInstitutes of Timour ought to be very well known to Mr. Hastings. Heought to have known that this prince never claimed arbitrary power; thatthe principles he adopted were to govern by law, to repress theoppressions of his inferior governors, to recognize in the nobility therespect due to their rank, and in the people the protection to whichthey were by law entitled. This book was published by Major Davy, andrevised by Mr. White. The Major was an excellent Orientalist; he wassecretary to Mr. Hastings, to whom, I believe, he dedicated this book. Ihave inquired of persons the most conversant with the Arabic andOriental languages, and they are clearly of opinion that there isinternal evidence to prove it of the age of Tamerlane; and he must bethe most miserable of critics, who, reading this work with attention, does not see, that, if it was not written by this very great monarchhimself, it was at least written by some person in his court and underhis immediate inspection. Whether, therefore, this work be thecomposition of Tamerlane, or whether it was written by some persons oflearning near him, through whom he meant to give the world a just ideaof his manners, maxims, and government, it is certainly as goodauthority as Mr. Hastings's _Defence_, which he has acknowledged to havebeen written by other people. 

From the Tartarian I shall now proceed to the later Mahometan conquerorsof Hindostan: for it is fit that I should show your Lordships thewickedness of pretending that the people of India have no laws orrights. A great proportion of the people are Mahometans; and Mahometansare so far from having no laws or rights, that, when you name aMahometan, 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, abook called "The Hedaya": it is true that he has himself taken creditfor the work, and robbed Nobkissin of the money to pay for it; but thevalue of a book is not lessened because a man stole it. Will youbelieve, my Lords, that a people having no laws, no rights, no property, no honor, would be at the trouble of having so many writers onjurisprudence? And yet there are, I am sure, at least a thousand eminentMahometan writers upon law, who have written far more voluminous worksthan are known in the Common Law of England, and I verily believe morevoluminous than the writings of the Civilians themselves. That thisshould be done by a people who have no property is so perfectlyridiculous as scarcely to require refutation; but I shall endeavor torefute it, and without troubling you a great deal. 

First, then, I am to tell you that the Mahometans are a people amongstwhom the science of jurisprudence is much studied and cultivated; thatthey distinguish it into the law of the _Koran_ and its authorizedcommentaries, --into the _Fetwah_, which is the judicial judgments andreports of adjudged cases, --into the _Canon_, which is the regulationsmade by the emperor for the sovereign authority in the government oftheir dominions, --and, lastly, into the _Rawaj-ul-Mulk_, or custom andusage, the common law of the country, which prevails independent of anyof 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 aresponsible person. "If a supreme ruler, such as the Caliph for the timebeing, commit any offence punishable by law, such as whoredom, theft, ordrunkenness, he is not subject to any punishment; but yet if he commitmurder, he is subject to the law of retaliation, and he is alsoaccountable in matters of property: because _punishment_ is a right ofGod, the infliction of which is committed to the Caliph, or othersupreme magistrate, and to none else; and he cannot inflict punishmentupon himself, as in this there is no advantage, because the goodproposed in punishment is that it may operate as a warning to determankind from sin, and this is not obtained by a person's inflictingpunishment upon himself, contrary to the rights of the _individual_, such as the laws of _retaliation_ and of _property_, the penalties ofwhich may be exacted of the Caliph, as the claimant of right may obtainsatisfaction, either by the Caliph impowering him to exact his rightfrom himself, or by the claimant appealing for assistance to thecollective body of Mussulmans. "[96]

Here your Lordships see that the Caliph, who is a magistrate of thehighest authority which can exist among the Mahometans, where propertyor life is concerned has no arbitrary power, but is responsible just asmuch 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 previousconsent, is impracticable. And so far from all property belonging to thesovereign, the public treasure does not belong to him. It is declared tobe the common property of all Mahometans. This doctrine is laid down inmany places, but particularly in the 95th page of the second volume ofHamilton'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 tothis part of his defence, and to compare Mr. Hastings's idea ofsovereignty with the declaration of the Mahometan law. The tenth chapterof these laws treats of rebellion, which is defined an act of warfareagainst the sovereign. You are there told who the sovereign is, and howmany kinds of rebels there are. The author then proceeds to say, --"Theword _bâghee_ (rebellion), in its literal sense, means prevarication, also, injustice and tyranny; in the language of the law it isparticularly applied to injustice, namely, withdrawing from obedience tothe rightful Imaum (as appears in the _Fattahal-Kadeen_). By therightful Imaum is understood a person in whom all the qualitiesessential to magistracy are united, such as Islamism, freedom, sanity ofintellect, and maturity of age, --and who has been elected into hisoffice by any tribe of Mussulmans, with their general consent; whoseview and intention is the advancement of the true religion and thestrengthening of the Mussulmans, and under whom the Mussulmans enjoysecurity in person and property; one who levies tithe and tributeaccording to law; who out of the public treasury pays what is due tolearned men, preachers, kâzees, muftis, philosophers, public teachers, and so forth; and who is just in all his dealings with Mussulmans: forwhoever does not answer this description is not the right Imaum; whenceit is not incumbent to support such a one; but rather it is incumbent tooppose him and make war upon him, until such time as he either adopt aproper mode of conduct or be slain. "[97]

My Lords, is this a magistrate of the same description as the sovereigndelineated by Mr. Hastings? This man must be elected by the generalconsent of Mussulmans; he must be a protector of the person and propertyof his subjects; a right of resistance is directly established by lawagainst him, and even the duty of resistance is insisted upon. Am I, inpraising this Mahometan law, applauding the principle of electivesovereignty? 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 theMussulman religion; but I produce the law as the clearest proof thatsuch a sovereign cannot be supposed to have an arbitrary power over theproperty and persons of those who elect him, and who have anacknowledged right to resist and dethrone him, if he does not affordthem 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 arbitrarypower, are not supported by the laws of the Moguls, by the laws of theGentoos, by the Mahometan laws, or by any law, custom, or usage whichhas 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 andconstitutions of Oude or of any other province; not the general practiceof a respectable emperor, like Akbar, which, if it would not fatigueyour Lordships, I could show to be the very reverse of this man's. No, my Lords, the prisoner, his learned counsel here, and his unlearnedCabinet Council, who wrote this defence, have ransacked the tales oftravellers for examples, and have selected materials from that mass ofloose remarks and crude conceptions, to prove that the natives of Indiahave neither rights, laws, orders, or distinction. 

I shall now proceed to show your Lordships that the people of India havea keen sense and feeling of disgrace and dishonor. In proof of this Iappeal to well-known facts. There have been women tried in India foroffences, and acquitted, who would not survive the disgrace even ofacquittal. There have been Hindoo soldiers, condemned at acourt-martial, who have desired to be blown from the mouth of a cannon, and have claimed rank and precedence at the last moment of theirexistence. And yet these people are said to have no sense of dishonor!Good God! that we should be under the necessity of proving, in thisplace, all these things, and of disproving that all India was given inslavery to this man!

But, my Lords, they will show you, they say, that Genghis Khân, KouliKhân, and Tamerlane destroyed ten thousand times more people in battlethan this man did. Good God! have they run mad? Have they lost theirsenses in their guilt? Did they ever expect that we meant to comparethis man to Tamerlane, Genghis Khân, or Kouli Khân?--to compare a clerkat a bureau, to compare a fraudulent bullock-contractor, (for we couldshow that his first elementary malversations were in carrying onfraudulent bullock-contracts; which contracts were taken from him withshame and disgrace, and restored with greater shame and disgrace, ) tocompare him with the conquerors of the world? We never said he was atiger and a lion: no, we have said he was a weasel and a rat. We havesaid that he has desolated countries by the same means that plagues ofhis 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. Weknow that a swarm of locusts, although individually despicable, canrender a country more desolate than Genghis Khân or Tamerlane. When GodAlmighty chose to humble the pride and presumption of Pharaoh, and tobring him to shame, He did not effect His purpose with tigers and lions;but He sent lice, mice, frogs, and everything loathsome andcontemptible, to pollute and destroy the country. Think of this, myLords, and of your listening here to these people's long account ofTamerlane's camp of two hundred thousand persons, and of his building apyramid at Bagdad with the heads of ninety thousand of his prisoners!

We have not accused Mr. Hastings of being a great general, and abusinghis military powers: we know that he was nothing, at the best, but acreature of the bureau, raised by peculiar circumstances to thepossession of a power by which incredible mischief might be done. Wehave not accused him of the vices of conquerors: when we see himsignalized by any conquests, we may then make such an accusation; atpresent we say that he has been trusted with power much beyond hisdeserts, and that trust he has grossly abused. --But to proceed. 

His counsel, according to their usual audacious manner, (I suppose theyimagine that they are counsel for Tamerlane, or for Genghis Khân, ) havethought 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 neveroffered anything to you without reason. We are not persons of an age, ofa disposition, of a character, representative or natural, to _wanton_, as these counsel call it, --that is, to invent fables concerning Indianantiquity. That they are not ashamed of making this charge I do notwonder. But we are not to be thus diverted from our course. 

I have already stated to your Lordships a material circumstance of thiscase, which I hope will never be lost sight of, --namely, the differentsituation in which India stood under the government of its nativeprinces and its own original laws, and even under the _dominion_ ofMahometan conquerors, from that in which it has stood under thegovernment of a series of tyrants, foreign and domestic, particularly ofMr. Hastings, by whom it has latterly been oppressed and desolated. Oneof the books which I have quoted was written by Mr. Halhed; and I shallnot be accused of wantoning in fabulous antiquity, when I refer toanother 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 thesehappy people" (speaking of the inhabitants of one of the provinces nearCalcutta); "for in this district are the only vestiges of the beauty, purity, piety, regularity, equity, and strictness of the ancientHindostan government: here the property as well as the liberty of thepeople is inviolate. " My Lords, I do not refer you to this writerbecause I think it necessary to our justification, nor from any fearthat your Lordships will not do us the justice to believe that we havegood authority for the facts which we state, and do not (as persons withtheir licentious tongues dare to say) wanton in fabulous antiquity. Iquote the works of this author, because his observations and opinionscould not be unknown to Mr. Hastings, whose associate he was in someacts, and whose adviser he appears to have been in that dreadfultransaction, the deposition of Cossim Ali Khân. This writer wasconnected with the prisoner at your bar in bribery, and has charged himwith detaining his bribe. To this Mr. Hastings has answered, that he hadpaid him long ago. How they have settled that corrupt transaction I knownot. I merely state all this to prove that we have not dealt in fabuloushistory, and that, if anybody has dealt in falsehood, it is Mr. Hastings's companion and associate in guilt, who must have known thecountry, and who, however faulty he was in other respects, had in thiscase no interest whatever in misrepresentation. 

I might refer your Lordships, if it were necessary, to Scrafton'saccount of that ancient government, in order to prove to you the happycomparative state of that country, even under its former usurpers. Ourdesign, my Lords, in making such references, is not merely to disprovethe prisoner's defence, but to vindicate the rights and privileges ofthe people of India. We wish to reinstate them in your sympathy. Wewish you to respect a people as respectable as yourselves, --a people whoknow as well as you what is rank, what is law, what is property, --apeople who know how to feel disgrace, who know what equity, what reason, what proportion in punishments, what security of property is, just aswell as any of your Lordships; for these are things which are secured tothem by laws, by religion, by declarations of all their sovereigns. Andwhat, my Lords, is opposed to all this? The practice of tyrants andusurpers, which Mr. Hastings takes for his rule and guidance. Heendeavors to find deviations from legal government, and then instructshis counsel to say that I have asserted there is no such thing asarbitrary power in the East. Good God! if there was no such thing in anyother part of the world, Mr. Hastings's conduct might have convinced meof the existence of arbitrary power, and have taught me much of itsmischief. 

But, my Lords, we all know that there has been arbitrary power inIndia, --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 thatthere are robberies on Hounslow Heath, --that there are such things asforgeries, burglaries, and murders; but I say that these acts areagainst law, and that whoever commit them commit illegal acts. When aman is to defend himself against a charge of crime, it is not instancesof similar violation of law that is to be the standard of his defence. Aman may as well say, "I robbed upon Hounslow Heath, but hundreds robbedthere before me": to which I answer, "The law has forbidden you to robthere; and I will hang you for having violated the law, notwithstandingthe long list of similar violations which you have produced asprecedents. " No doubt princes have violated the law of this country:they have suffered for it. Nobles have violated the law: theirprivileges have not protected them from punishment. Common people haveviolated the law: they have been hanged for it. I know no human beingexempt 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 everyperson that is governed, and of every person that governs. There is butone law for all, namely, that law which governs all law, the law of ourCreator, the law of humanity, justice, equity, --the Law of Nature and ofNations. So far as any laws fortify this primeval law, and give it moreprecision, more energy, more effect by their declarations, such lawsenter into the sanctuary, and participate in the sacredness of itscharacter. But the man who quotes as precedents the abuses of tyrantsand robbers pollutes the very fountain of justice, destroys thefoundations of all law, and thereby removes the only safeguard againstevil men, whether governors or governed, --the guard which preventsgovernors from becoming tyrants, and the governed from becoming rebels. 

 * * * * *

I hope your Lordships will not think that I have unnecessarily occupiedyour time in disproving the plea of arbitrary power, which has beenbrought forward at our bar, has been repeated at your Lordships' bar, and has been put upon the records of both Houses. I hope your Lordshipswill not think that such monstrous doctrine should be passed over, without all possible pains being taken to demonstrate its falsehood andto reprobate its tendency. I have not spared myself in exposing theprinciples avowed by the prisoner. At another time I will endeavor toshow you the manner in which he acted upon these principles. I cannotcommand 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 thehonor of appearing before you by the order of my fellow Managers, Istated to you their observations and my own upon two great points: onethe demeanor of the prisoner at the bar during his trial, and the otherthe principles of his defence. I compared that demeanor with thebehavior of some of the greatest men in this kingdom, who have, onaccount of their offences, been brought to your bar, and who have seldomescaped your Lordships' justice. I put the decency, humility, andpropriety of the most distinguished men's behavior in contrast with theshameless effrontery of this prisoner, who has presumptuously made arecriminatory charge against the House of Commons, and answered theirimpeachment by a counter impeachment, explicitly accusing them ofmalice, oppression, and the blackest ingratitude. 

My Lords, I next stated that this recriminatory charge consisted of twodistinct parts, --injustice and delay. To the injustice we are to answerby 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 oneof the consequences of the delay, the ruinous expense which theprisoner complains of, we have desired your Lordships to make aninquiry, and have referred you to facts and witnesses which will removethis part of the charge. 

With regard to ingratitude, there will be a proper time foranimadversion on this charge. For in considering the merits that areintended to be set off against his crimes, we shall have to examine intothe nature of those merits, and to ascertain how far they are tooperate, either as the prisoner designs they shall operate in his favor, as presumptive proofs that a man of such merits could not be guilty ofsuch crimes, or as a sort of set-off to be pleaded in mitigation of hisoffences. In both of these lights we shall consider his services, and inthis consideration we shall determine the justice of his charge ofingratitude. 

My Lords, we have brought the demeanor of the prisoner before you foranother reason. We are desirous that your Lordships may be enabled toestimate, from the proud presumption and audacity of the criminal atyour bar, when he stands before the most awful tribunal in the world, accused by a body representing no less than the sacred voice of hiscountry, what he must have been when placed in the seat of pride andpower. What must have been the insolence of that man towards the nativesof India, who, when called here to answer for enormous crimes, presumesto behave, not with the firmness of innocence, but with the audacity andhardness of guilt!

It may be necessary that I should recall to your Lordships' recollectionthe principles of the accusation and of the defence. Your Lordships willbear in mind that the matters of fact are all either settled byconfession or conviction, and that the question now before you is nolonger an issue of fact, but an issue of law. The question is, whatdegree of merit or demerit you are to assign by law to actions whichhave been laid before you, and their truth acknowledged. 

The principle being established that you are to decide upon an issue atlaw, we examined by what law the prisoner ought to be tried; and wepreferred a claim which we do now solemnly prefer, and which we trustyour Lordships will concur with us in a laudable emulation toestablish, --a claim founded upon the great truths, that all power islimited by law, and ought to be guided by discretion, and not byarbitrary will, --that all discretion must be referred to theconservation and benefit of those over whom power is exercised, andtherefore must be guided by rules of sound political morality. 

We next contended, that, wherever existing laws were applicable, theprisoner at your bar was bound by the laws and statutes of this kingdom, as a British subject; and that, whenever he exercised authority in thename of the Company, or in the name of his Majesty, or under any othername, he was bound by the laws and statutes of this kingdom, both inletter and spirit, so far as they were applicable to him and to hiscase; and above all, that he was bound by the act to which he owed hisappointment, in all transactions with foreign powers, to act accordingto the known recognized rules of the Law of Nations, whether thesepowers were really or nominally sovereign, whether they were dependentor independent. 

The next point which we established, and which we now call to yourLordships' recollection, is, that he was bound to proceed according tothe laws, rights, laudable customs, privileges, and franchises of thecountry that he governed; and we contended that to such laws, rights, privileges, and franchises the people of the country had a clear andjust claim. 

Having established these points as the basis of Mr. Hastings's generalpower, 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 alltimes, and particularly where he had entered into special covenantsregarding special articles of obedience. 

These are the principles by which we have examined the conduct of thisman, and upon which we have brought him to your Lordships' bar forjudgment. This is our table of the law. Your Lordships shall now beshown the table by which he claims to be judged. But I will first begyour Lordships to take notice of the utter contempt with which he treatsall our acts of Parliament. 

Speaking of the absolute sovereignty which he would have you believe isexercised by the princes of India, he says, "The sovereignty which theyassumed it fell to my lot, very unexpectedly, to exert; and whether ornot such power, or powers of that nature, were delegated to me by anyprovisions of any act of Parliament I confess myself too little of alawyer to pronounce, " and so on. This is the manner in which he treatsan act of Parliament! In the place of acts of Parliament he substituteshis own arbitrary will. This he contends is the sole law of the countryhe governed, as laid down in what he calls the arbitrary Institutes ofGenghis Khân and Tamerlane. This arbitrary will he claims, to theexclusion of the Gentoo law, the Mahometan law, and the law of his owncountry. He claims the right of making his own will the sole rule of hisgovernment, and justifies the exercise of this power by the examples ofAliverdy Khân, Cossim Ali Khân, Sujah Dowlah Khân, and all those Khânswho have rebelled against their masters, and desolated the countriessubjected to their rule. This, my Lords, is the law which he has laiddown for himself, and these are the examples which he has expressly toldthe House of Commons he is resolved to follow. These examples, my Lords, and the principles with which they are connected, without any softeningor mitigation, he has prescribed to you as the rule by which his conductis to be judged. 

Another principle of the prisoner is, that, whenever the Company'saffairs are in distress, even when that distress proceeds from his ownprodigality, mismanagement, or corruption, he has a right to take forthe Company's benefit privately in his own name, with the futureapplication of it to their use reserved in his own breast, every kind ofbribe or corrupt present whatever. 

I have now restated to your Lordships the maxims by which the prisonerpersists in defending himself, and the principles upon which we claim tohave him judged. The issue before your Lordships is a hundred times moreimportant than the cause itself, for it is to determine by what law ormaxims of law the conduct of governors is to be judged. 

On one side, your Lordships have the prisoner declaring that the peoplehave no laws, no rights, no usages, no distinctions of rank, no sense ofhonor, no property, --in short, that they are nothing but a herd ofslaves, to be governed by the arbitrary will of a master. On the otherside, we assert that the direct contrary of this is true. And to proveour assertion we have referred you to the Institutes of Genghis Khân andof Tamerlane; we have referred you to the Mahometan law, which isbinding upon all, from the crowned head to the meanest subject, --a lawinterwoven with a system of the wisest, the most learned, and mostenlightened jurisprudence that perhaps ever existed in the world. Wehave shown you, that, if these parties are to be compared together, itis not the rights of the people which are nothing, but rather the rightsof 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 forbidthat these maxims should trench upon sovereignty, and its true, just, and lawful prerogative!--on the contrary, they ought to support andestablish them. The sovereign's rights are undoubtedly sacred rights, and ought to be so held in every country in the world, because exercisedfor the benefit of the people, and in subordination to that great endfor which alone God has vested power in any man or any set of men. Thisis the law that we insist upon, and these are the principles upon whichyour Lordships are to try the prisoner at your bar. 

Let me remind your Lordships that these people lived under the laws towhich I have referred you, and that these laws were formed whilst we, Imay say, were in the forest, certainly before we knew what technicaljurisprudence was. These laws are allowed to be the basis and substratumof the manners, customs, and opinions of the people of India; and wecontend that Mr. Hastings is bound to know them and to act by them; andI shall prove that the very condition upon which he received power inIndia was to protect the people in their laws and known rights. Butwhether Mr. Hastings did know these laws, or whether, content withcredit gained by as base a fraud as was ever practised, he did not readthe books which Nobkissin paid for, we take the benefit of them: we knowand speak after knowledge of them. And although I believe his Councilhave never read them, I should be sorry to stand in this place, if therewas 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 bythese Institutes, either in their general spirit or in any particularpassage to which he has had the impudence to appeal, in the assumptionof the arbitrary power which he has exercised. We claim, that, as ourown government and every person exercising authority in Great Britain isbound by the laws of Great Britain, so every person exercising authorityin another country shall be subject to the laws of that country; sinceotherwise they break the very covenant by which we hold our power there. Even if these Institutes had been arbitrary, which they are not, theymight have been excused as the acts of conquerors. But, my Lords, he isno conqueror, nor anything but what you see him, --a bad scribbler ofabsurd papers, in which he can put no two sentences together withoutcontradiction. We know him in no other character than that of havingbeen a bullock-contractor for some years, of having acted fraudulentlyin that capacity, and afterwards giving fraudulent contracts to others;and yet I will maintain that the first conquerors of the world wouldhave been base and abandoned, if they had assumed such a right as hedares to claim. It is the glory of all such great men to have for theirmotto, _Parcere subjectis et debellare superbos_. These were men thatsaid they would recompense the countries which they had obtained throughtorrents of blood, through carnage and violence, by the justice of theirinstitutions, the mildness of their laws, and the equity of theirgovernment. Even if these conquerors had promulgated arbitraryinstitutes instead of disclaiming them in every point, you, my Lords, would never suffer such principles of defence to be urged here; stillless will you suffer the examples of men acting by violence, of menacting by wrong, the example of a man who has become a rebel to hissovereign in order that he should become the tyrant of his people, to beexamples for a British governor, or for any governor. We hereconfidently protest against this mode of justification, and we maintainthat his pretending to follow these examples is in itself a crime. Theprisoner has ransacked all Asia for principles of despotism; he hasransacked all the bad and corrupted part of it for tyrannical examplesto justify himself: and certainly in no other way can he be justified. 

Having established the falsehood of the first principle of theprisoner's defence, that sovereignty, wherever it exists in India, implies in its nature and essence a power of exacting anything from thesubject, and disposing of his person and property, we now come to hissecond assertion, that he was the true, full, and perfect representativeof that sovereignty in India. 

In opposition to this assertion we first do positively deny that he orthe Company are the perfect representative of any sovereign powerwhatever. They have certain rights by their charter, and by acts ofParliament, but they have no other. They have their legal rights only, and these do not imply any such thing as sovereign power. Thesovereignty of Great Britain is in the King; he is the sovereign of theLords 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 ofParliament, whether by charter of the Crown, or by any other modewhatever, all are alike bound by law, and responsible to it. No one canassume or receive any power of sovereignty, because the sovereignty isin the Crown, and cannot be delegated away from the Crown; no suchdelegation ever took place, or ever was intended, as any one may see inthe act by which Mr. Hastings was nominated Governor. He cannot, therefore, exercise that high supreme sovereignty which is vested by thelaw, with the consent of both Houses of Parliament, in the King, and inthe King only. It is a violent, rebellious assumption of power, when Mr. Hastings pretends fully, perfectly, and entirely to represent thesovereign of this country, and to exercise legislative, executive, andjudicial authority, with as large and broad a sway as his Majesty, acting with the consent of the two Houses of Parliament, and agreeablyto the laws of this kingdom. I say, my Lords, this is a traitorous andrebellious assumption, which he has no right to make, and which wecharge against him, and therefore it cannot be urged in justification ofhis conduct in any respect. 

He next alleges, with reference to one particular case, that he receivedthis sovereignty from the Vizier Sujah Dowlah, who he pretends wassovereign, with an unlimited power over the life, goods, and property ofCheyt Sing. This we positively deny. Whatever power the supremesovereign of the empire had, we deny that it was delegated to SujahDowlah. 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 werefer you to the Institutes of Timour, to the Institutes of Akbar, tothe institutes of the Mahometan law, for the powers of delegatedgovernors and viceroys. You will find that there is not a trace ofsovereignty 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 Mogulemperor, had them not. I defy any man to show an instance of thatemperor's claiming any such thing as arbitrary power; much less can itbe claimed by a rebellious viceroy who had broken loose from hissovereign's authority, just as this man broke loose from the authorityof Parliament. The one had not a right to give, nor the other to receivesuch powers. But whatever rights were vested in the Mogul, they cannotbelong either to Sujah Dowlah, to Mr. Hastings, or to the Company. Theselatter are expressly bound by their compact to take care of the subjectsof the empire, and to govern them according to law, reason, and equity;and when they do otherwise, they are guilty of tyranny, of a violationof the rights of the people, and of rebellion against their sovereign. 

We have taken these pains to ascertain and fix principles, because yourLordships 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 lawto the fact that makes the act criminal or laudable. You must find afixed standard of some kind or other; for if there is no standard butthe immediate momentary purpose of the day, guided and governed by theman who uses it, fixed not only for the disposition of all the wealthand strength of the state, but for the life, fortune, and property ofevery individual, your Lordships are left without a principle to directyour judgment. This high court, this supreme court of appeal from allthe courts of the kingdom, this highest court of criminal jurisdiction, exercised upon the requisition of the House of Commons, if left withouta rule, would be as lawless as the wild savage, and as unprincipled asthe prisoner that stands at your bar. Our whole issue is uponprinciples, and what I shall say to you will be in perpetual referenceto them; because it is better to have no principles at all than to havefalse principles of government and of morality. Leave a man to hispassions, 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 maylick your hands; in like manner, when a tyrant is pleased or his passionsatiated, you may have a happy and serene day under an arbitrarygovernment. But when the principle founded on solid reason, which oughtto restrain passion, is perverted from its proper end, the falseprinciple will be substituted for it, and then man becomes ten timesworse than a wild beast. The evil principle, grown solid and perennial, goads him on and takes entire possession of his mind; and then perhapsthe best refuge that you can have from that diabolical principle is inthe natural wild passions and unbridled appetites of mankind. This is adreadful state of things; and therefore we have thought it necessary tosay a great deal upon his principles. 

 * * * * *

My Lords, we come next to apply these principles to facts which cannototherwise be judged, as we have contended and do now contend. I will notgo over facts which have been opened to you by my fellow Managers: if Idid so, I should appear to have a distrust, which I am sure no other manhas, 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 Icould go over the ground which my fellow Managers have once trodden, andmake anything more clear and forcible than they have done. In my humbleopinion, human ability cannot go farther than they have gone; and if Iever allude to anything which they have already touched, it will be toshow it in another light, --to mark more particularly its departure fromthe principles upon which we contend you ought to judge, or to supplythose parts which through bodily infirmity, and I am sure nothing else, one of my excellent fellow Managers has left untouched. I am herealluding to the case of Cheyt Sing. 

My honorable fellow Manager, Mr. Grey, has stated to you all thecircumstances requisite to prove two things: first, that the demandsmade by Mr. Hastings upon Cheyt Sing were contrary to fundamentaltreaties between the Company and that Rajah; and next, that they werethe result and effect of private malice and corruption. This havingbeen stated and proved to you, I shall take up the subject where it wasleft. 

My Lords, in the first place, I have to remark to you, that the whole ofthe charge originally brought by Mr. Hastings against Cheyt Sing, injustification of his wicked and tyrannical proceedings, is, that he hadbeen dilatory, evasive, shuffling, and unwilling to pay that which, however unwilling, evasive, and shuffling, he did pay; and that, withregard to the business of furnishing cavalry, the Rajah has asserted, and his assertion has not been denied, that, when he was desired by theCouncil to furnish these troopers, the purpose for which thisapplication was made was not mentioned or alluded to, nor was there anyplace of muster pointed out. We therefore contended, that the demand wasnot made for the service of the state, but for the oppression of theindividual 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 bywhich it has been disguised, it merely amounts to an unwillingness inthe Rajah to pay more than the sums stipulated by the mutual agreementexisting between him and the Company. This is the whole of it, the wholefront and head of the offence; and for this offence, such as it is, andadmitting that he could be legally fined for it, he was subjected to thesecret punishment of giving a bribe to Mr. Hastings, by which he was tobuy off the fine, and which was consequently a commutation for it. 

That your Lordships may be enabled to judge more fully of the nature ofthis offence, let us see in what relation Cheyt Sing stood with theCompany. He was, my Lords, a person clothed with every one of theattributes of sovereignty, under a direct stipulation that the Companyshould not interfere in his internal government. The military and civilauthority, the power of life and death, the whole revenue, and the wholeadministration of the law, rested in him. Such was the sovereignty hepossessed within Benares: but he was a subordinate sovereign dependentupon a superior, according to the tenor of his compact, expressed orimplied. Now, having contended, as we still contend, that the Law ofNations is the law of India as well as of Europe, because it is the lawof reason and the law of Nature, drawn from the pure sources ofmorality, of public good, and of natural equity, and recognized anddigested into order by the labor of learned men, I will refer yourLordships to Vattel, Book I. Cap. 16, where he treats of the breach ofsuch agreements, by the protector refusing to give protection, or theprotected refusing to perform his part of the engagement. My design inreferring you to this author is to prove that Cheyt Sing, so far frombeing blamable in raising objections to the unauthorized demand madeupon him by Mr. Hastings, was absolutely bound to do so; nor could hehave done otherwise, without hazarding the whole benefit of theagreement upon which his subjection and protection were founded. The lawis the same with respect to both contracting parties: if the protectedor protector does not fulfil with fidelity _each his separatestipulation_, the protected may resist the unauthorized demand of theprotector, or the protector is discharged from his engagement; he mayrefuse protection, and declare the treaty broken. 

We contend in favor of Cheyt Sing, in support of the principles ofnatural equity, and of the Law of Nations, which is the birthright of usall, --we contend, I say, that Cheyt Sing would have established, in theopinions of the best writers on the Law of Nations, a precedent againsthimself for any future violation of the engagement, if he submitted toany new demand, without what our laws call a continual claim orperpetual remonstrance against the imposition. Instead, therefore, ofdoing that which was criminal, he did that which his safety and his dutybound him to do; and for doing this he was considered by Mr. Hastings asbeing guilty of a great crime. In a paper which was published by theprisoner in justification of this act, he considers the Rajah to havebeen guilty of rebellious intentions; and he represents these acts ofcontumacy, as he calls them, not as proofs of contumacy merely, but asproofs of a settled design to rebel, and to throw off the authority ofthat nation by which he was protected. This belief he declares on oathto be the ground of his conduct towards Cheyt Sing. 

Now, my Lords, we do contend, that, if any subject, under any name, orof any description, be not engaged in public, open rebellion, butcontinues to acknowledge the authority of his sovereign, and, iftributary, to pay tribute conformably to agreement, such a subject, incase of being suspected of having formed traitorous designs, ought to betreated 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 publicsafety; and as a judge, he was bound to convene a criminal court, and tolay before it a detailed accusation of the offence. He was bound toproceed publicly and legally against the accused, and to convict him ofhis crime, previous to his inflicting, or forming any intention ofinflicting, punishment. I say, my Lords, that Mr. Hastings, as amagistrate, was bound to proceed against the Rajah either by Englishlaw, by Mahometan law, or by the Gentoo law; and that, by all or any ofthese laws, he was bound to make the accused acquainted with the crimealleged, to hear his answer to the charge, and to produce evidenceagainst him, in an open, clear, and judicial manner. And here, my Lords, we have again to remark, that the Mahometan law is a great discriminatorof persons, and that it prescribes the mode of proceeding against thosewho are accused of any delinquency requiring punishment, with areference to the distinction and rank which the accused held in society. The proceedings are exceedingly sober, regular, and respectful, even tocriminals charged with the highest crimes; and every magistrate isrequired to exercise his office in the prescribed manner. In the Hedaya, after declaring and discussing the propriety of the Kâzi's sittingopenly in the execution of his office, it is added, that there is noimpropriety in the Kâzi sitting in his own house to pass judgment, butit is requisite that he give orders for a free access to the people. Itthen proceeds thus:--"It is requisite that such people sit along withthe Kâzi as were used to sit with him, prior to his appointment to theoffice; because, if he were to sit alone in his house, he would therebygive 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 prescribedrules. First, with regard to the publicity of the matter. Did he evergive any notice to the Supreme Council of the charges which he says hehad 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, andI am afraid bribed colleague, Mr. Wheler? Did he even then, I ask, produce any one charge against this man? He sat in Council as ajudge, --as an English judge, --as a Mahometan judge, --as a judge by theGentoo law, and by the Law of Nature. He should have summoned the partyto appear in person, or by his attorney, before him, and should havethere informed him of the charge against him. But, my Lords, he did notact 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 inferredfrom his having never informed the Council of the matter. He neverinformed the Rajah of Benares of the suspicions entertained against him, during the discussions which took place respecting the multiplieddemands that were made upon him. He never told this victim, as he hashad the audacity to tell us and all this kingdom in the paper that isbefore your Lordships, that he looked upon these refusals to comply withhis demands to be overt acts of rebellion; nor did he ever call upon himto answer or to justify himself with regard to that imputed conspiracyor rebellion. Did he tell Sadanund, the Rajah's agent, when that agentwas giving him a bribe or a present in secret, and was thus endeavoringto deprecate his wrath, that he accepted that bribe because his masterwas in rebellion? Never, my Lords; nor did he, when he first reachedBenares, and had the Rajah in his power, suggest one word concerningthis rebellion. Did he, when he met Mr. Markham at Boglipore, where theyconsulted about the destruction of this unhappy man, did he tell Mr. Markham, or did Mr. Markham insinuate to him, any one thing about thisconspiracy and rebellion? No, not a word there, or in his whole progressup the country. While at Boglipore, he wrote a letter to Lord Macartneyupon the state of the empire, giving him much and various advice. Did heinsinuate in that letter that he was going up to Benares to suppress arebellion of the Rajah Cheyt Sing or to punish him? No, not a word. Didhe, my Lords, at the eve of his departure from Calcutta, when hecommunicated his intention of taking 500, 000_l. _, which he calls a fineor penalty, from the Rajah, did he inform Mr. Wheler of it? No, not aword of his rebellion, nor anything like it. Did he inform his secretconfidants, Mr. Anderson and Major Palmer, upon that subject? Not aword, there was not a word dropped from him of any such rebellion, or ofany intention in the Rajah Cheyt Sing to rebel. Did he, when he hadvakeels in every part of the Mahratta empire and in the country of SujahDowlah, when he had in most of those courts English ambassadors andnative spies, did he either from ambassadors or spies receive anythinglike 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 ofhis master, and to whom he gave a jaghire in this very zemindary ofBenares. This man, so attached to Mr. Hastings, so knowing in all thetransactions of India, neither accused Cheyt Sing of rebelliousintentions, or furnished Mr. Hastings with one single proof that anyconspiracy with any foreign power existed. 

In this absence of evidence, My Lords, let us have recourse toprobability. Is it to be believed that the Zemindar of Benares, a personwhom Mr. Hastings describes as being of a timid, weak, irresolute, andfeeble nature, should venture to make war alone with the whole power ofthe Company in India, aided by all the powers which Great Britain couldbring to the protection of its Indian empire? Could that poor man, inhis comparatively small district, possibly have formed such anintention, without giving Mr. Hastings access to the knowledge of thefact from one or other of the numerous correspondents which he had inthat country?

As to the Rajah's supposed intrigues with the Nabob of Oude: this manwas an actual prisoner of Mr. Hastings, and nothing else, --a merevassal, as he says himself, in effect and substance, though not in name. Can any one believe or think that Mr. Hastings would not have receivedfrom the English Resident, or from some one of that tribe of Englishgentlemen and English military collectors who were placed in thatcountry in the exercise of the most arbitrary powers, some intelligencewhich he could trust, if any rebellious designs had really existedprevious to the rebellion which did actually break out upon hisarresting Cheyt Sing?

There was an ancient Roman lawyer, of great fame in the history of Romanjurisprudence, whom they called _Cui Bono_, from his having firstintroduced into juridical proceedings the argument, _What end or objectcould the party have had in the art with which he is accused?_ Surely itmay be here asked, Why should Cheyt Sing wish to rebel, who held on easyand moderate terms (for such I admit they were) a very considerableterritory, with every attribute of royalty attached? The tribute waspaid for protection, which he had a right to claim, and which heactually received. What reason under heaven could he have to go and seekanother master, to place himself under the protection of Sujah Dowlah, in whose hands Mr. Hastings tells you, in so many direct and plainwords, that neither the Rajah's property, his honor, or his life couldbe safe? Was he to seek refuge with the Mahrattas, who, though Gentooslike himself, had reduced every nation which they subdued, except thosewho were originally of their own empire, to a severe servitude? Can anyone believe that he wished either for the one or the other of thesecharges [changes?], or that he was desirous to quit the happyindependent situation in which he stood under the protection of theBritish empire, from any loose, wild, improbable notion of mending hiscondition? My Lords, it is impossible. There is not one particle ofevidence, not one word of this charge on record, prior to thepublication of Mr. Hastings's Narrative; and all the presumptiveevidence 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 thusfairly and candidly avowed that he entertained no such opinion at thetime. "Every step, " says he, "which I had taken before that fatalmoment, namely, the flight of Cheyt Sing, is an incontrovertible proofthat I had formed no design of seizing upon the Rajah's treasures or ofdeposing him. And certainly, at the time when I did form the design ofmaking the punishment that his former ill conduct deserved subservientto the exigencies of the state by a large fine, I did not believe himguilty of that premeditated project for driving the English out of Indiawith which I afterwards charged him. " Thus, then, he declares upon oaththat the Rajah's contumacy was the ground of his suspecting him ofrebellion, and yet, when he comes to make his defence before the Houseof Commons, he simply and candidly declares, that, long after thesealleged acts of contumacy had taken place, he did not believe him to beguilty of any such thing as rebellion, and that the fine imposed uponhim was for another reason and another purpose. 

In page 28 of your printed Minutes he thus declares the purpose forwhich the fine was imposed:--"I can answer only to this formidabledilemma, that, so long as I conceived Cheyt Sing's misconduct andcontumacy to have me rather than the Company for its object, at least tobe merely the effect of pernicious advice or misguided folly, withoutany formal design of openly resisting our authority or disclaiming oursovereignty, I looked upon a considerable fine as sufficient both forhis immediate punishment and for binding him to future good behavior. "

Here, my Lords, the secret comes out. He declares it was not for arebellion or a suspicion of rebellion that he resolved, over and aboveall his exorbitant demands, to take from the Rajah 500, 000_l. _, (a goodstout sum to be taken from a tributary power!)--that it was not formisconduct of this kind that he took this sum, but for personal illbehavior towards himself. I must again beg your Lordships to note thathe then considered the Rajah's contumacy as having for its object, notthe Company, but Warren Hastings, and that he afterwards declaredpublicly to the House of Commons, and now before your Lordships hedeclares finally and conclusively, that he did believe Cheyt Sing tohave had the criminal intention imputed to him. 

"So long, " says he, "as I conceived Cheyt Sing's misconduct andcontumacy 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 afine: I therefore entertained no serious thoughts of expelling him, orproceeding otherwise to violence. But when he and his people broke outinto the most atrocious acts of rebellion and murder, when the _jusfortioris et lex ultima regum_ were appealed to on his part, and withoutany sufficient plea afforded him on mine, I from that moment consideredhim as the traitor and criminal described in the charge, and noconcessions, no humiliations, could ever after induce me to settle onhim the zemindary of Benares, or any other territory, upon any footingwhatever. "

Thus, then, my Lords, he has confessed that the era and the only era ofrebellion was when the tumult broke out upon the act of violence offeredby himself to Cheyt Sing; and upon the ground of that tumult, orrebellion as he calls it, he says he never would suffer him to enjoy anyterritory or any right whatever. We have fixed the period of therebellion for which he is supposed to have exacted this fine; thisperiod of rebellion was after the exaction of the fine itself: so thatthe fine was not laid for the rebellion, but the rebellion broke out inconsequence of the fine, and the violent measure accompanying it. Wehave established this, and the whole human race cannot shake it. He wentup the country through malice, to revenge his own private wrongs, notthose of the Company. He fixed 500, 000_l. _ as a mulct for an insultoffered to himself, and then a rebellion broke out in consequence of hisviolence. This was the rebellion, and the only rebellion; it was WarrenHastings's rebellion, --a rebellion which arose from his own dreadfulexaction, from his pride, from his malice and insatiable avarice, --arebellion which arose from his abominable tyranny, from his lust ofarbitrary power, and from his determination to follow the examples ofSujah Dowlah, Asoph ul Dowlah, Cossim Ali Khân, Aliverdy Khân, and allthe gang of rebels who are the objects of his imitation. 

"_My patience_, " says he, "_was exhausted_. " Your Lordships have, andought to have, a judicial patience. Mr. Hastings has none of any kind. Ihold that patience is one of the great virtues of a governor; it wassaid of Moses, that he governed by patience, and that he was the meekestman upon earth. Patience is also the distinguishing character of ajudge; and I think your Lordships, both with regard to us and withregard to him, have shown a great deal of it: we shall ever honor thequality, and if we pretend to say that we have had great patience ingoing through this trial, so your Lordships must have had great patiencein hearing it. But this man's patience, as he himself tells you, wassoon exhausted. "I considered, " he says, "the light in which suchbehavior would have been viewed by his native sovereign, and I resolvedhe should feel the power he had so long insulted. Forty or fifty lacs ofrupees would have been a moderate fine for Sujah ul Dowlah to exact, --hewho had demanded twenty-five lacs for the mere fine of succession, andreceived twenty in hand, and an increased rent tantamount toconsiderably above thirty lacs more; and therefore I rejected the offerof twenty, with which the Rajah would have compromised for his guiltwhen it was too late. "

Now, my Lords, observe who his models were, when he intended to punishthis man for an insult on himself. Did he consult the laws? Did he lookto the Institutes of Timour, or to those of Genghis Khân? Did he look tothe Hedaya, or to any of the approved authorities in this country? No, my Lords, he exactly followed the advice which Longinus gives to a greatwriter:--"Whenever you have a mind to elevate your mind, to raise it toits highest pitch, and even to exceed yourself, upon any subject, thinkhow Homer would have described it, how Plato would have imagined it, andhow Demosthenes would have expressed it; and when you have so done, youwill then, no doubt, have a standard which will raise you up to thedignity of anything that human genius can aspire to. " Mr. Hastings wascalling upon himself, and raising his mind to the dignity of whattyranny could do, what unrighteous exaction could perform. Heconsidered, he says, how much Sujah Dowlah would have exacted, and thathe thinks would not be too much for him to exact. He boldly avows, --"Iraised my mind to the elevation of Sujah Dowlah; I considered whatCossim Ali Khân would have done, or Aliverdy Khân, who murdered androbbed so many, I had all this line of great examples before me, and Iasked 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 ofsuccession. "

Good God! my Lords, if you are not appalled with the violent injusticeof arbitrary proceedings, you must feel something humiliating at thegross ignorance of men who are in this manner playing with the rights ofmankind. This man confounds a fine upon succession with a fine ofpenalty. He takes advantage of a defect in the technical language of ourlaw, which, I am sorry to say, is not, in many parts, as correct in itsdistinctions and as wise in its provisions as the Mahometan law. We usethe word _fine_ in three senses: first, as a punishment and penalty;secondly, as a formal means of cutting off by one form the ties ofanother form, which we call levying a fine; and, thirdly, we use theword to signify a sum of money payable upon renewal of a lease orcopyhold. The word has in each case a totally different sense; but suchis the stupidity and barbarism of the prisoner, that he confounds thesesenses, and tells you Sujah Dowlah took twenty-five lacs as a fine fromCheyt Sing for the renewal of his zemindary, and therefore, as apunishment for his offences, he shall take fifty. Suppose any one ofyour Lordships, or of us, were to be fined for assault and battery, orfor anything else, and it should be said, "You paid such a fine for abishop's lease, you paid such a fine on the purchase of an estate, andtherefore, now that you are going to be fined for a punishment, we willtake the measure of the fine, not from the nature and quality of youroffence, not from the law upon the subject, or from your ability topay, but the amount of a fine you paid some years ago for an estateshall be the measure of your punishment. " My Lords, what should we sayof such brutish ignorance, and such shocking confusion of ideas?

When this man had elevated his mind according to the rules of art, andstimulated himself to great things by great examples, he goes on to tellyou that he rejected the offer of twenty lacs with which the Rajah wouldhave compounded for his guilt when it was too late. 

Permit me, my Lords, to say a few words here, by way of referring backall this monstrous heap of violence and absurdity to some degree ofprinciple. Mr. Hastings having completely acquitted the Rajah of anyother fault than contumacy, and having supposed even that to be onlypersonal to himself, he thought a fine of 500, 000_l. _ would be a properpunishment. Now, when any man goes to exact a fine, it presupposesinquiry, 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 theRoman 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 ofthose wicked traitors and rebels whom I have before described. Hementions his intention of levying a fine; but does he make any mentionof having charged the Rajah with his offences? It appears that he heldan incredible quantity of private correspondence through the variousResidents, through Mr. Graham, Mr. Fowke, Mr. Markham, Mr. Benn, concerning the affairs of that country. Did he ever, upon this allegedcontumacy, (for at present I put the rebellion out of the question, )inquire the progress of this personal affront offered to theGovernor-General of Bengal? Did he ever state it to the Rajah, or did hecall his vakeel before the Council to answer the charge? Did he examineany one person, or particularize a single fact, in any manner whatever?No. What, then, did he do? Why, my Lords, he declared himself the personinjured, stood forward as the accuser, assumed the office of judge, andproceeded to judgment without a party before him, without trial, withoutexamination, without proof. He thus directly reversed the order ofjustice. He determined to fine the Rajah when his own patience, as hesays, was exhausted, not when justice demanded the punishment. Heresolved to fine him in the enormous sum of 500, 000_l. _ Does he informthe Council of this determination? No. The Court of Directors? No. Anyone 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 heeven inform Mr. Malcolm [Markham?] of his intentions, until he met himat Boglipore. 

In regard to the object of his malice, we only know that many letterscame from Cheyt Sing to Mr. Hastings, in which the unfortunate manendeavored to appease his wrath, and to none of which he ever gave ananswer. He is an accuser preferring a charge and receiving apologies, without giving the party an answer, although he had a crowd ofsecretaries about him, maintained at the expense of the miserable peopleof Benares, and paid by sums of money drawn fraudulently from theirpockets. Still not one word of answer was given, till he had formed theresolution of exacting a fine, and had actually by torture made hisvictim's servant discover where his master's treasures lay, in orderthat he might rob him of all his family possessed. Are these theproceedings of a British judge? or are they not rather such as aredescribed by Lord Coke (and these learned gentlemen, I dare say, willremember the passage; it is too striking not to be remembered) as _"thedamned and damnable proceedings of a judge in hell_"? Such a judge hasthe prisoner at your bar proved himself to be. First he determines uponthe punishment, then he prepares the accusation, and then by torture andviolence endeavors to extort the fine. 

My Lords, I must again beg leave to call your attention to his mode ofproceeding in this business. He never entered any charge. He neveranswered any letter. Not that he was idle. He was carrying on a wickedand clandestine plot for the destruction of the Rajah, under thepretence of this fine; although the plot was not known, I verilybelieve, to any European at the time. He does not pretend that he toldany 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 tellsyou, that Cheyt Sing had a vakeel at Calcutta, whose business it was tolearn the general transactions of our government, and the most minuteparticulars which could in any manner affect the interest of hisemployer. 

I must here tell your Lordships, that there is no court in Asia, fromthe highest to the lowest, no petty sovereign, that does not both employand receive what they call _hircarrahs_, or, in other words, persons tocollect and to communicate political intelligence. These men arereceived with the state and in the rank of ambassadors; they have theirplace in the durbar; and their business, as authorized spies, is as wellknown there as that of ambassadors extraordinary and ordinary in thecourts of Europe. Mr. Hastings had a public spy, in the person of theResident, 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 theknowledge of Mr. Hastings's clandestine and wicked intentions towardsthis unhappy man, Cheyt Sing, and his unhappy country, and of hisdesigns for the destruction and the utter ruin of both. He has himselftold you, and he has got Mr. Anderson to vouch it, that he had receivedproposals for the sale of this miserable man and his country. And fromwhom did he receive these proposals, my Lords? Why, from the Nabob Asophul Dowlah, to whom he threatened to transfer both the person of theRajah and his zemindary, if he did not redeem himself by some pecuniarysacrifice. Now Asoph ul Dowlah, as appears by the minutes on yourLordships' table, was at that time a bankrupt. He was in debt to theCompany tenfold more than he could pay, and all his revenues weresequestered for that debt. He was a person of the last degree ofindolence with the last degree of rapacity, --a man of whom Mr. Hastingsdeclared, that he had wasted and destroyed by his misgovernment thefairest provinces upon earth, that not a person in his dominions wassecure from his violence, and that even his own father could not enjoyhis life and honor in safety under him. This avaricious bankrupt tyrant, who had beggared and destroyed his own subjects, and could not pay hisdebts to the English government, was the man with whom Mr. Hastings wasin treaty to deliver up Cheyt Sing and his country, under pretence ofhis not having paid regularly to the Company those customary paymentswhich the tyrant would probably have never paid at all, if he had beenput in possession of the country. This I mention to illustrate Mr. Hastings's plans of economy and finance, without considering theinjustice and cruelty of delivering up a man to the hereditary enemy ofhis family. 

It is known, my Lords, that Mr. Hastings, besides having receivedproposals for delivering up the beautiful country of Benares, thatgarden of God, as it is styled in India, to that monster, that rapacioustyrant, Asoph ul Dowlah, who with his gang of mercenary troops haddesolated his own country like a swarm of locusts, had purposed likewiseto seize Cheyt Sing's own patrimonial forts, which was nothing less thanto take from him the residence of his women and his children, the seatof his honor, the place in which the remaining treasures and last hopesof his family were centred. By the Gentoo law, every lord or suprememagistrate is bound to construct and to live in such a fort. It is theusage of India, and is a matter of state and dignity, as well as ofpropriety, reason, and defence. It was probably an apprehension of beinginjured in this tender point, as well as a knowledge of the proposalmade 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 heassigned any other reason than that of Mr. Hastings intending to exactfrom him six lacs of rupees over and above his other exactions. 

Mr. Hastings, indeed, almost acknowledges the existence of this plotagainst the Rajah, and his being the author of it. He says, without anydenial of the fact, that the Rajah suspected some strong acts to beintended against him, and therefore asked Mr. Markham whether he couldnot buy them off and obtain Mr. Hastings's favor by the payment of200, 000_l. _ Mr. Markham gave as his opinion, that 200, 000_l. _ was notsufficient; and the next day the Rajah offered 20, 000_l. _ more, in all220, 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, orsomething to that effect, and therefore retracted his offer, but becausethat offer had been rejected by Mr. Hastings. 

Let us hear what reason the man who was in the true secret gives for notaccepting the Rajah's offer. "I rejected, " says Mr. Hastings, "the offerof twenty lacs, with which the Rajah would have compromised for hisguilt when it was too late. " My Lords, he best knows what the motives ofhis own actions were. He says, the offer was made "when it was toolate. " Had he previously told the Rajah what sum of money he would berequired to pay in order to buy himself off, or had he required him toname any sum which he was willing to pay? Did he, after having refusedthe offer made by the Rajah, say, "Come and make me a better offer, orupon such a day I shall declare that your offers are inadmissible"? Nosuch thing appears. Your Lordships will further remark, that Mr. Hastings refused the 200, 000_l. _ at a time when the exigencies of theCompany were so pressing that he was obliged to rob, pilfer, and stealupon 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 hadinvolved him, 200, 000_l. _ would have been a weighty benefit, althoughderived 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. Nosuch thing appears. There is not a trace upon your minutes, not a tracein the correspondence of the Company, to prove that the Rajah would atany time have been permitted to buy himself off from this complicatedtyranny. 

I have already stated a curious circumstance in this proceeding, towhich I must again beg leave to direct your Lordships' attention. Doesit anywhere appear in that correspondence, or in the testimony of Mr. Benn, of Mr. Markham, or of any human being, that Mr. Hastings had evertold Cheyt Sing with what sum he should be satisfied? There is evidencebefore you directly in proof that they did not know the amount. Not oneperson knew what his intention was, when he refused this 200, 000_l. _ Forwhen he met Mr. Markham at Boglipore, and for the first time mentionedthe sum of 500, 000_l. _ as the fine he meant to exact, Mr. Markham wasastonished 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 secrecyis 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 fromthe iniquitous intentions of Mr. Hastings; and at last he is told thathis offer comes too late, without having ever been told the period atwhich it would have been well-timed, or the amount it was proposed totake 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 hedefends himself and these proceedings. He says, "I rejected this offerof twenty lacs, with which the Rajah would have compromised for hisguilt when it was too late. " If by these words he means too late toanswer the purpose for which he has said the fine was designed, namely, the relief of the Company, the ground of his defence is absolutelyfalse; for it is notorious that at the time referred to the Company'saffairs were in the greatest distress. 

I will next call your Lordships' attention to the projected sale ofBenares to the Nabob of Oude. "If, " says Mr. Hastings, "I ever talked ofselling the Company's sovereignty over Benares to the Nabob of Oude, itwas but _in terrorem_; and no subsequent act of mine warrants thesupposition of my having seriously intended it. " And in another place hesays, "If I ever threatened" (your Lordships will remark, that he putshypothetically a matter the reality of which he has got to be solemnlydeclared on an affidavit, and in a narrative to the truth of which hehas deposed upon oath)--"if I ever threatened, " says he, "to dispossessthe 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 theCompany had no pretensions to the sovereignty of the country. It is nomore than such a legal act of sovereignty as his behavior justified, andas I was justified in by the intentions of my predecessors. If Ipretended to seize upon his forts, it was in full conviction that adependant on the Company, guarantied, maintained, and protected in hiscountry by the Company's arms, had no occasion for forts, had no rightto them, and could hold them for no other than suspected and rebelliouspurposes. None of the Company's other zemindars are permitted tomaintain them; and even our ally, the Nabob of the Carnatic, has theCompany's troops in all his garrisons. Policy and public safetyabsolutely require it. What state could exist that allowed its inferiormembers to hold forts and garrisons independent of the superioradministration? It is a solecism in government to suppose it. "

Here, then, my Lords, he first declares that this was merely done _interrorem_; that he never intended to execute the abominable act. Andwill your Lordships patiently endure that such terrific threats as theseshall be hung by your Governor in India over the unhappy people that aresubject to him and protected by British faith? Will you permit, that, for the purpose of extorting money, a Governor shall hold out theterrible threat of delivering a tributary prince and his people, boundhand and foot, into the power of their perfidious enemies?

The terror occasioned by threatening to take from him his forts can onlybe estimated by considering, that, agreeably to the religion andprejudices of Hindoos, the forts are the places in which their women arelodged, in which, according to their notions, their honor is deposited, and in which is lodged all the wealth that they can save against an evilday to purchase off the vengeance of an enemy. These forts Mr. Hastingssays he intended to take, because the Rajah could hold them for no otherthan rebellious and suspected purposes. Now I will show your Lordshipsthat the man who has the horrible audacity to make this declaration didhimself assign to the Rajah these very forts. He put him in possessionof them, and, when there was a dispute about the Nabob's rights to themon the one side and the Company's on the other, did confirm them to thisman. The paper shall be produced, that you may have before your eyes thegross contradictions into which his rapacity and acts of arbitrary powerhave betrayed him. Thank God, my Lords, men that are greatly guilty arenever wise. I repeat it, men that are greatly guilty are never wise. Intheir defence of one crime they are sure to meet the ghost of someformer defence, which, like the spectre in Virgil, drives them back. Theprisoner at your bar, like the hero of the poet, when he attempts tomake his escape by one evasion, is stopped by the appearance of someformer contradictory averment. If he attempts to escape by one door, there his criminal allegations of one kind stop him; if he attempts toescape at another, the facts and allegations intended for some otherwicked 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 toyou what is said by Nundcomar of these forts, which it is pretendedcould be held for none but suspicious and rebellious purposes. 

"At the time Mr. Hastings was going to Benares, he desired me to givehim an account in writing of any lands which, though properly belongingto the Subah of Bahar, might have come under the dominion of BulwantSing, that they might be recovered from his son, Rajah Cheyt Sing. Thepurgunnahs of Kera, Mungrora, and Bidjegur were exactly in thissituation, having been usurped by Bulwant Sing from the Subah of Bahar. I accordingly delivered to Mr. Hastings the accounts of them, from theentrance of the Company upon the dewanny to the year 1179 of the Fusseliera, stated at twenty-four lacs. Mr. Hastings said, 'Give a copy of thisto Roy Rada Churn, that, if Cheyt Sing is backward in acknowledging thisclaim, Rada Churn may answer and confute him. ' Why Mr. Hastings, when hearrived at Benares, and had called Rajah Cheyt Sing before him, leftthese 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 thepretended usurpations made by the Rajah of Benares, of the purgunnahs ofKera, Mungrora, and Bidjegur. " (Your Lordships will recollect thatBidjegur is one of those very forts which he declares could not be heldbut for suspicious and rebellious purposes. ) "I do not recollect hismentioning it again, when I set out for Benares; neither did I everintimate the subject, either to Cheyt Sing or his ministers, because Iknew I could not support the claim; and to have made it and dropped itwould have been in every sense dishonorable. Not that I passed by itwith indifference or inattention. I took pains to investigate thefoundation of this title, and recommended it to the particular inquiryof Mr. Vansittart, who was the Chief of Patna, at the time in which Ireceived the first intimation. The following letter and voucher, which Ireceived from him, contain a complete statement of this pretendedusurpation. "

These vouchers will answer our purpose, fully to establish that in hisopinion the claim of the English government upon those forts was at thattime totally unfounded, and so absurd that he did not even dare tomention 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 whichCheyt Sing had deposited his women and family. That fortress did Mr. Hastings himself give to this very man, deciding in his favor as ajudge, upon an examination and after an inquiry: and yet he now declaresthat he had no right to it, and that he could not hold it but for wickedand rebellious purposes. But, my Lords, when he changed this language, he had resolved to take away these forts, --to destroy them, --to root theRajah out of every place of refuge, out of every secure place in whichhe 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, giventhem 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 possessionby the _pottah_ of the Governor-General and Council, which contains anenumeration 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 putthe question in Council upon that pottah, or afterwards, tell theCouncil they were going to put forts into the man's hands to which hehad no right, and which could be held only for rebellious and suspectedpurposes? We refer your Lordships to the places in which all thesetransactions are mentioned, and you will there find Mr. Hastings took noone exception whatever against them; nor, till he was resolved upon thedestruction of this unhappy man, did he ever so much as mention them. Itwas not till then that he discovers the possession of these forts by theRajah to be _a solecism in government_. 

After quoting the noble examples of Sujah Dowlah, and the other personswhom I have mentioned to you, he proceeds to say, that some of hispredecessors, without any pretensions to sovereign authority, endeavoredto get these forts into their possession; and "I was justified, " sayshe, "by the intention of my predecessors. " Merciful God! if anything cansurpass what he has said before, it is this: "My predecessors, withoutany title of sovereignty, without any right whatever, wished to getthese forts into their power; I therefore have a right to do what theywished to do; and I am justified, not by the acts, but by the_intentions_ of my predecessors. " At the same time he knows that thesepredecessors had been reprobated by the Company for this part of theirproceedings; he knew that he was sent there to introduce a bettersystem, and to put an end to this state of rapacity. Still, whatever hispredecessors _wished_, however unjust and violent it might be, when thesovereignty came into his hands, he maintains that he had a right to doall which they were desirous of accomplishing. Thus the enormitiesformerly practised, which the Company sent him to correct, became asacred standard for his imitation. 

Your Lordships will observe that he slips in the word _sovereignty_ andforgets compact; because it is plain, and your Lordships must perceiveit, that, wherever he uses the word sovereignty, he uses it to destroythe authority of all compacts; and accordingly in the passage now beforeus he declares that there is an invalidity in all compacts entered intoin India, from the nature, state, and constitution of that empire. "Fromthe disorderly form of its government, " says he, "there is an invalidityin all compacts and treaties whatever. " "Persons who had no treaty withthe Rajah wished, " says he, "to rob him: therefore I, who have a treatywith him, and call myself his sovereign, have a right to realize alltheir wishes. "

But the fact is, my Lords, that his predecessors never did propose todeprive Bulwant Sing, the father of Cheyt Sing, of his zemindary. They, indeed, wished to have had the dewanny transferred to them, in themanner it has since been transferred to the Company. They wished toreceive his rents, and to be made an intermediate party between him andthe Mogul emperor, his sovereign. These predecessors had entered intono compact with the man: they were negotiating with his sovereign forthe transfer of the dewanny or stewardship of the country, whichtransfer was afterwards actually executed; but they were obliged to givethe country itself back again to Bulwant Sing, with a guaranty againstall the pretensions of Sujah Dowlah, who had tyrannically assumed anarbitrary power over it. This power the predecessors of Mr. Hastingsmight also have wished to assume; and he may therefore say, according tothe mode of reasoning which he has adopted, --"Whatever they wished todo, 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 willpenetrate into that tiger's bosom, and discover the latent seeds ofrapacity and injustice which lurk there, and I will make him the subjectof 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, hehas laid down another very extraordinary doctrine. He has laid it downas a sort of canon, (in injustice and corruption, ) that, whateverdemand, whether just or unjust, a man declares his intention of makingupon another, he should exact the precise sum which he has determinedupon, 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 tomake any communication to Cheyt Sing of taking less than the fifty lacswhich in my own mind I had resolved to exact. " And he adds, --"I shallmake my last and solemn appeal to the breast of every man who shall readthis, whether it is likely, or morally possible, that I should have tieddown 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 mercenaryatonement for my own private emolument, and suffer all this tumult toterminate in an ostensible and unsubstantial submission to the authoritywhich I represented. "

He had just before said, "If I ever talked of selling the Company'ssovereignty to the Nabob of Oude, it was only _in terrorem_. " In theface of this assertion, he here gives you to understand he never heldout anything _in terrorem_, but what he intended to execute. But we willshow you that in fact he had reserved to himself a power of acting _prore nata_, and that he intended to compound or not, just as answered hispurposes upon this occasion. "I admit, " he says, "that I did not enterit [the intention of fining Cheyt Sing] on the Consultations, because itwas not necessary; even this plan itself of the fine was not a fixedplan, but to be regulated by circumstances, both as to the substantialexecution of it and the mode. " Now here is a man who has given it in asworn narrative, that he did not intend to have a farthing less. Why?"Because I should have menaced and done as in former times has beendone, --made great and violent demands which I reduce afterwards for myown corrupt purposes. " Yet he tells you in the course of the samedefence, but in another paper, that he had no fixed plan, that he didnot know whether he should exact a fine at all, or what should be hismode of executing it. 

My Lords, what shall we say to this man, who declares that it would be aproof of corruption not to exact the full sum which he had threatened toexact, but who, finding that this doctrine would press hard upon him, and be considered as a proof of cruelty and injustice, turns round anddeclares he had no intention of exacting anything? What shall we say toa man who thus reserves his determination, who threatens to sell atributary prince to a tyrant, and cannot decide whether he should takefrom him his forts and pillage him of all he had, whether he shouldraise 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 wholetransaction, ) whether he should do any or all of those things, and then, by his own account, going up to Benares without having resolved anythingupon this important subject?

My Lords, I will now assume the hypothesis that he at last discoveredsufficient proof of rebellious practices; still even this gave him noright to adduce such rebellion in justification of resolutions which hehad taken, of acts which he had done, before he knew anything of itsexistence. To such a plea we answer, and your Lordships will every oneof you answer, --"You shall not by a subsequent discovery of rebelliouspractices, which you did not know at the time, and which you did noteven believe, as you have expressly told us here, justify your conductprior to that discovery. " If the conspiracy which he falsely imputes toCheyt Sing, if that wild scheme of driving the English out of India, hadexisted, think in what miserable circumstances we stand as prosecutors, and your Lordships as judges, if we admit a discovery to be pleaded injustification of antecedent acts founded upon the assumed existence ofthat which he had no sort of proof, knowledge, or belief of!

My Lords, we shall now proceed to another circumstance, not lessculpable in itself, though less shocking to your feelings, than those towhich I have already called your attention: a circumstance which throwsa strong presumption of guilt upon every part of the prisoner's conduct. Having formed all these infernal plots in his mind, but uncertain whichof them he should execute, uncertain what sums of money he shouldextort, whether he should deliver up the Rajah to his enemy or pillagehis forts, he goes up to Benares; but he first delegates to himself allthe powers of government, both civil and military, in the countrieswhich he was going to visit. 

My Lords, we have asserted in our charge that this delegation anddivision of power was illegal. He invested _himself_ with thisauthority; for _he_ was the majority in the Council: Mr. Wheler'sconsent or dissent signifying nothing. He gave himself powers which theact of Parliament did not give him. He went up to Benares with anillegal commission, civil and military; and to prove this I shall begleave to read the provisions of the act of Parliament. I shall show whatthe creature ought to be, by showing the law of the creator: what thelegislature of Great Britain meant that Governor Hastings should be, notwhat 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 actthere can be given, to the government of India, a power of dividing itsunity into two parts, each of which shall separately be a unity andpossess the power given to the whole. Yet, my Lords, an agreement wasmade between him and Mr. Wheler, that he (Mr. Hastings) should haveevery 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 belegal, we must refer you to the constitution of the Company'sgovernment. The whole power is vested in the Council, where allquestions are to be decided by a majority of voices, and the members aredirected to record in the minutes of their proceedings not only thequestions decided, but the grounds upon which each individual memberfounds his vote. Now, although the Council is competent to delegate itsauthority for any _specific_ purpose to any servant of the Company, yetto admit that it can delegate its authority _generally_, withoutreserving the means of deliberation and control, would be to change thewhole constitution. By such a proceeding the government may be dividedinto a number of independent governments, without a common deliberativeCouncil and control. This deliberative capacity, which is so strictlyguarded by the obligation of recording its consultations, would betotally annihilated, if the Council divided itself into independentparts, each acting according to its own discretion. There is no similarinstance in law, there is no similar instance in policy. The conduct ofthese men implies a direct contradiction; and you will see, by theagreement they made to support each other, that they were themselvesconscious of the illegality of this proceeding. 

After Mr. Hastings had conferred absolute power upon himself during hisstay in the upper provinces by an order of Council, (of which Council hewas himself a majority, ) he entered the following minute in theConsultations. "The Governor-General delivers in the following minute. In my minute which I laid before the court on the 21st May, I expressedthe satisfaction with which I could at this juncture leave thePresidency, from the mutual confidence which was happily establishedbetween Mr. Wheler and me. I now readily repeat that sentiment, andobserve with pleasure that Mr. Wheler confirms it. Before my departure, it is probable that we shall in concert have provided at the board foralmost every important circumstance that can eventually happen during myabsence; but if any should occur for which no previous provision shallhave been made in the resolutions of the board, Mr. Wheler may act withimmediate decision, and with the fullest confidence of my support, inall such emergencies, as well as in conducting the ordinary business ofthe 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 fullpowers of the Governor-General and Council of this government, as ineffect he is by the constitution; and he may be assured, that, so far asmy sanction and concurrence shall be, or be deemed, necessary to theconfirmation of his measures, he shall receive them. "

Now here is a compact of iniquity between these two duumvirs. They eachgive to the other the full, complete, and perfect powers of thegovernment; and in order to secure themselves against any obstacles thatmight arise, they mutually engage to ratify each other's acts: and theysay this is not illegal, because Lord Cornwallis has had such adeputation. I must first beg leave to observe that no man can justifyhimself 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 thesame kind done subsequently to his act, because the latter may have beendone in consequence of his bad example. Men justify their acts in twoways, --by law and by precedent; the former asserts the right, the latterpresumes 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 LordCornwallis to have done wrong; suppose him to have acted illegally; doesthat clear the prisoner at your bar? No: on the contrary, it aggravateshis offence; because he has afforded others an example of corrupt andillegal conduct. But if even Lord Cornwallis had preceded, instead offollowing him, the example would not have furnished a justification. There is no resemblance in the cases. Lord Cornwallis does not hold hisgovernment by the act of 1773, but by a special act made afterwards; andtherefore to attempt to justify acts done under one form of appointmentby 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 wasconsequently trusted with extraordinary powers. He went in the twocharacters of governor and commander-in-chief; and yet the legislaturewas sensible of the doubtful validity of a Governor-General's carryingwith him the whole powers of the Council. But Mr. Hastings was notcommander-in-chief, when he assumed the whole military as well as civilpower. Lord Cornwallis, as I have just said, was not onlycommander-in-chief, but was going to a great war, where he might haveoccasion to treat with the country powers in a civil capacity; and yetso doubtful was the legislature upon this point, that they passed aspecial act to confirm that delegation, and to give him a power ofacting under it. 

My Lords, we do further contend that Mr. Hastings had no right to assumethe character of commander-in-chief; for he was no military man, nor washe appointed by the Company to that trust. His assumption of themilitary authority was a gross usurpation. It was an authority to whichhe would have had no right, if the whole powers of government werevested 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 neitherhave given those powers to himself nor made a partition of them with Mr. Wheler. Could Lord Cornwallis, for instance, who carried with him thepower of commander-in-chief, and authority to conclude treaties with allthe native powers, could he, I ask, have left a Council behind him inCalcutta with equal powers, who might have concluded treaties in directcontradiction to those in which he was engaged? Clearly he could not;therefore I contend that this partition of power, which supposes anintegral authority in each counsellor, is a monster that cannot exist. This the parties themselves felt so strongly that they were obliged tohave recourse to a stratagem scarcely less absurd than their dividedassumption of power. They entered into a compact to confirm each other'sacts, and to support each other in whatever they did: thus attempting togive their separate acts a legal form. 

I have further to remark to your Lordships, what has just been suggestedto me, that it was for the express purpose of legalizing LordCornwallis's delegation that he was made commander-in-chief as well asGovernor-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 actingwith delegated power can delegate that power to another. _Delegatus nonpotest delegare_ is a maxim of law. Much less has he a right tosupersede the law, and the principle of his own delegation andappointment, upon any idea of convenience. But what was the conveniency?There was no one professed object connected with Mr. Hastings's going upto Benares which might not as well have been attained in Calcutta. Theonly difference would have been, that in the latter case he must haveentered some part of his proceedings upon the Consultations, whether hewished it or not. If he had a mind to negotiate with the Vizier, he hada resident at his court, and the Vizier had a resident in Calcutta. Themost solemn treaties had often been made without any Governor-Generalcarrying up a delegation of civil and military power. If it had beenhis object to break treaties, he might have broken them at Calcutta, ashe broke the treaty of Chunar. Is there an article in that treaty thathe might not as well have made at Calcutta? Is there an article that hebroke (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 mighthave done both or either without ever stirring from the Presidency. 

I can conceive a necessity so urgent as to supersede all laws; but Ihave no conception of a necessity that can require twogovernors-general, each forming separately a _supreme_ council. Nay, tobring the point home to him, --if he had a mind to make Cheyt Sing to paya fine, as he called it, he could have made him do that at Calcutta aswell as at Benares. He had before contrived to make him pay all theextra demands that were imposed upon him; and he well knew that he couldsend Colonel Camac, or somebody else, to Benares, with a body of troopsto enforce the payment. Why, then, did he go to try experiments there inhis own person? For this plain reason: that he might be enabled to putsuch sums in his own pocket as he thought fit. It was not and could notbe for any other purpose; and I defy the wit of man to find out anyother. 

He says, my Lords, that Cheyt Sing might have resisted, and that, if hehad not been there, the Rajah might have fled with his money, or raiseda rebellion for the purpose of avoiding payment. Why, then, we ask, didhe not send an army? We ask, whether Mr. Markham, with an army under thecommand of Colonel Popham, or Mr. Fowke, or any other Resident, was notmuch more likely to exact a great sum of money than Mr. Hastingswithout an army? My Lords, the answer must be in the affirmative; it istherefore evident that no necessity could exist for his presence, andthat his presence and conduct occasioned his being defeated in thismatter. 

We find this man, armed with an illegal commission, undertaking anenterprise which he has since said was perilous, which proved to beperilous, and in which, as he has told us himself, the existence of theBritish empire in India was involved. The talisman, (your Lordships willremember his use of the word, ) that charm which kept all India in order, which kept mighty and warlike nations under the government of a fewEnglishmen, would, I verily believe, have been broken forever, if he, orany other Governor-General, good or bad, had been killed. Infinitemischiefs would have followed such an event. The situation in which heplaced himself, by his own misconduct, was pregnant with danger; and heput himself in the way of that danger without having any armed forceworth mentioning, although he has acknowledged that Cheyt Sing had thenan immense force. In fact, the demand of two thousand cavalry provesthat he considered the Rajah's army to be formidable; yet, notwithstanding this, with four companies of sepoys, poorly armed andill provisioned, he went to invade that fine country, and to force fromits sovereign a sum of money, the payment of which he had reason tothink would be resisted. He thus rashly hazarded his own being and thebeing of all his people. 

"But, " says he, "I did not imagine the Rajah intended to go intorebellion, and therefore went unarmed. " Why, then, was his presencenecessary? Why did he not send an order from Calcutta for the payment ofthe money? But what did he do, when he got there? "I was alarmed, " sayshe; "for the Rajah surrounded my budgero with two thousand men: thatindicated a hostile disposition. " Well, if he did so, what precautiondid Mr. Hastings take for his own safety? Why, none, my Lords, none. Hemust therefore have been either a madman, a fool, or a determineddeclarer of falsehood. Either he thought there was no danger, andtherefore no occasion for providing against it, or he was the worst ofgovernors, the most culpably improvident of his personal safety, of thelives 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 andto create resistance. In fact, he confesses this. Mr. Markham and he hada discourse upon that subject, and agreed to arrest the Rajah, becausethey thought the enforcing this demand might drive him to his forts, andexcite a rebellion in the country. He therefore knew there was danger tobe apprehended from this act of violence. And yet, knowing this, he sentone unarmed Resident to give the orders, and four unarmed companies ofsepoys to support him. He provokes the people, he goads them with everykind of insult added to every kind of injury, and then rushes into thevery jaws of danger, provoking a formidable foe by the display of apuny, insignificant force. 

In expectation of danger, he seized the person of the Rajah, and hepretends that the Rajah suffered no disgrace from his arrest. But, myLords, we have proved, what was stated by the Rajah, and was well knownto Mr. Hastings, that to imprison a person of elevated station, in thatcountry, is to subject him to the highest dishonor and disgrace, andwould make the person so imprisoned utterly unfit to execute thefunctions of government ever after. 

I have now to state to your Lordships a transaction which is worse thanhis wantonly playing with the safety of the Company, worse than hisexacting sums of money by fraud and violence. My Lords, the history ofthis transaction must be prefaced by describing to your Lordships theduty and privileges attached to the office of _Naib_. A Naib is anofficer well known in India, as the administrator of the affairs of anygovernment, whenever the authority of the regular holder is suspended. But, although the Naib acts only as a deputy, yet, when the power of theprincipal is totally superseded, as by imprisonment or otherwise, andthat of the Naib is substituted, he becomes the actual sovereign, andthe principal is reduced to a mere pensioner. I am now to show yourLordships whom Mr. Hastings appointed as Naib to the government of thecountry, after he had imprisoned the Rajah. 

Cheyt Sing had given him to understand through Mr. Markham, that he wasaware of the design of suspending him, and of placing his government inthe hands of a Naib whom he greatly dreaded. This person was calledUssaun Sing; he was a remote relation of the family, and an object oftheir peculiar suspicion and terror. The moment Cheyt Sing was arrested, he found that his prophetic soul spoke truly; for Mr. Hastings actuallyappointed this very man to be his master. And who was this man? We aretold by Mr. Markham, in his evidence here, that he was a man who haddishonored his family, --he was the disgrace of his house, --that he was aperson who could not be trusted; and Mr. Hastings, in giving Mr. Markhamfull power afterwards to appoint Naibs, expressly excepted this UssaunSing from all trust whatever, as a person totally unworthy of it. Yetthis Ussaun Sing, the disgrace and calamity of his family, an incestuousadulterer, and a supposed issue of a guilty connection, was declaredNaib. Yes, my Lords, this degraded, this wicked and flagitiouscharacter, the Rajah's avowed enemy, was, in order to heighten theRajah's disgrace, to embitter his ruin, to make destruction itselfdishonorable 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 durationof his imprisonment, he delivered up the country to a man whom he knewto be utterly undeserving, a man whom he kept in view for the purpose offrightening the Rajah, and whom he was obliged to depose on account ofhis misconduct almost as soon as he had named him, and to excludespecially 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. WhenMr. Hastings imprisoned the Rajah, he did not renew his demand for the500, 000_l. _, but he exhibited a regular charge of various pretendeddelinquencies against him, digested into heads, and he called on him, ina dilatory, irregular way of proceeding, for an answer. The man, underevery difficulty and every distress, gave an answer to every particularof the charge, as exact and punctilious as could have been made toarticles of impeachment in this House. 

I must here request your Lordships to consider the order of theseproceedings. Mr. Hastings, having determined upon the utter ruin anddestruction of this unfortunate prince, endeavored, by the arrest of hisperson, by a contemptuous disregard to his submissive applications, bythe appointment of a deputy who was personally odious to him, and by theterror of still greater insults, he endeavored, I say, to goad him on tothe commission of some acts of resistance sufficient to give a color ofjustice to that last dreadful extremity to which he had resolved tocarry his malignant rapacity. Failing in this wicked project, andstudiously avoiding the declaration of any terms upon which the Rajahmight redeem himself from these violent proceedings, he next declaredhis intention of seizing his forts, the depository of his victim'shonor, and of the means of his subsistence. He required him to deliverup his accounts and accountants, together with all persons who wereacquainted with the particulars of his effects and treasures, for thepurpose 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 theindignation which these proceedings had occasioned in the breasts of theRajah's subjects burst out into an open flame. The Rajah had retired tothe last refuge of the afflicted, to offer up prayers to his God and ourGod, when a vile _chubdar_, or tipstaff, came to interrupt and insulthim. His alarmed and loyal subjects felt for a beloved sovereign thatdeep interest which we should all feel, if our sovereign were sotreated. What man with a spark of loyalty in his breast, what manregardful of the honor of his country, when he saw his sovereignimprisoned, and so notorious a wretch appointed his deputy, could be apatient witness of such wrongs? The subjects of this unfortunate princedid what we should have done, --what all who love their country, who lovetheir liberty, who love their laws, who love their property, who lovetheir sovereign, would have done on such an occasion. They looked uponhim as their sovereign, although degraded. They were unacquainted withany authority superior to his, and the phantom of tyranny whichperformed these oppressive acts was unaccompanied by that force whichjustifies submission by affording the plea of necessity. An unseentyrant and four miserable companies of sepoys executed all the horriblethings that we have mentioned. The spirit of the Rajah's subjects wasroused by their wrongs, and encouraged by the contemptible weakness oftheir oppressors. The whole country rose up in rebellion, and surely injustifiable rebellion. Every writer on the Law of Nations, every manthat has written, thought, or felt upon the affairs of government, mustwrite, know, think, and feel, that a people so cruelly scourged andoppressed, both in the person of their chief and in their own persons, were justified in their resistance. They were roused to vengeance, and ashort, but most bloody war followed. 

We charge the prisoner at your bar with all the consequences of thiswar. We charge him with the murder of our sepoys, whom he sent unarmedto such a dangerous enterprise. We charge him with the blood of everyman 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 thelargest and fullest sense of the word; because he was the cause of themurder of our English officers and sepoys, whom he kept unarmed, andunacquainted with the danger to which they would be exposed by theviolence of his transactions. He sacrificed to his own nefarious viewsevery one of those lives, as well as the lives of the innocent nativesof Benares, whom he designedly drove to resistance by the weakness ofthe force opposed to them, after inciting them by tyranny and insult tothat display of affection towards their sovereign which is the duty ofall good subjects. 

My Lords, these are the iniquities which we have charged upon theprisoner at your bar; and I will next call your Lordships' attention tothe manner in which these iniquities have been pretended to bejustified. You will perceive a great difference in the manner in whichthis prisoner is tried, and of which he so much complains, and themanner in which he dealt with the unfortunate object of his oppression. The latter thus openly appeals to his accuser. "You are, " says he, "uponthe spot. It is happy for me that you are so. You can now inquire intomy conduct. " Did Mr. Hastings so inquire? No, my Lords, we have not aword of any inquiry; he even found fresh matter of charge in the answerof the Rajah, although, if there is any fault in this answer, it is itsextremely humble and submissive tone. If there was anything faulty inhis manner, it was his extreme humility and submission. It is plain hewould have almost submitted to anything. He offered, in fact, 220, 000_l. _ to redeem himself from greater suffering. Surely no mangoing into rebellion would offer 220, 000_l. _ of the treasure which wouldbe so essential to his success; nor would any government that was reallyapprehensive of rebellion call upon the suspected person to arm anddiscipline two thousand horse. My Lords, it is evident no suchapprehensions were entertained; nor was any such charge made untilpunishment had commenced. A vague accusation was then brought forward, which was answered by a clear and a natural defence, denying some partsof the charge, evading and apologizing for others, and desiring thewhole to be inquired into. To this request the answer of theGovernor-General was, "That won't do; you shall have no inquiries. " Andwhy? "Because I have arbitrary power, you have no rights, and I can andwill punish you without inquiry. " I admit, that, if his will is the law, he may take [make?] the charge before punishment or the punishmentbefore the charge, or he may punish without making any charge. If hiswill is the law, all I have been saying amounts to nothing. But I haveendeavored to let your Lordships see that in no country upon the earthis 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 theHedaya, agrees with the general practice in India. It was usual, exceptin cases of notorious injustice and oppression, whenever a rebellion ora suspicion of a rebellion existed, to admonish the rebellious party andpersuade him to return to his duty. Causes of complaint were removedand 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 attendto it. His unfortunate victim was goaded to revolt and driven from hissubjects, although he endeavored by message after message to reconcilethis cruel tyrant to him. He is told in reply, "You have shed the bloodof Englishmen, and I will never be reconciled to you. " Your Lordshipswill 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 tomake tyranny the very foundation of our government. I do not say hereupon what occasion people may or may not resist; but surely, if everthere was an occasion on which people, from love to their sovereign andregard to their country, might take up arms, it was this. They saw atyrant violent in his demands and weak in his power. They saw theirprince imprisoned and insulted, after he had made every offer ofsubmission, and had laid his turban three times in the lap of hisoppressor. They saw him, instead of availing himself of the means hepossessed of cutting off his adversary, (for the life of Mr. Hastingswas entirely in his power, ) betaking himself to flight. They thenthronged round him, took up arms in his defence, and shed the blood ofsome of his insulters. Is this resistance, so excited, so provoked, aplea for irreconcilable vengeance?

I must beg pardon for having omitted to lay before your Lordships in itsproper place a most extraordinary paper, which will show you in whatmanner judicial inquiries are conducted, upon what grounds charges aremade, by what sort of evidence they are supported, and, in short, towhat perils the lives and fortunes of men are subjected in that country. This paper is in the printed Minutes, page 1608. It was given inagreeably to the retrograde order which they have established in theirjudicial proceedings. It was produced to prove the truth of a charge ofrebellion which was made some months before the paper in evidence wasknown 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 transactionat Benares. But what was this evidence? "I communicated, " he says, "thesubstance of a conversation said to have passed. " Observe, _said_: not aconversation that had passed to his knowledge or recollection, but whathis informant said had passed. He adds, this conversation was reportedto him by a person whom he won't name, but in whom, he says, he had someconfidence. This anonymous person, in whom he had put some confidence, was not himself present at the conversation; he only reports to him thatit was _said_ by somebody else that such a conversation had taken place. This conversation, which somebody told Colonel Balfour he had heard wassaid by somebody to have taken place, if true, related to matters ofgreat importance; still the mode of its communication was left to Mr. Markham, and that gentleman did not bring it forward till some monthsafter. Colonel Balfour proceeds to say, --"Some days after thisconversation was said to have happened, " (your Lordships will observe itis always, "was said to have happened, ") "I was informed by the sameperson that the Rajah had received a message from one of the Begums atFyzabad, (I think it was from Sujah ul Dowlah's widow, ) advising him notto comply with the demands of government, and encouraging him to expectsupport in case of his resisting. " He next adds, --"This also, Ibelieve, " (observe, he says he is not quite sure of it, ) "I communicatedto Mr. Markham; but not being perfectly certain, " (of a matter theimmediate knowledge of which, if true, was of the highest importance tohis country, ) "I now think it my duty to remove the possibility of yourremaining unacquainted with, a circumstance which may not be unconnectedwith the present conduct of the Rajah. "

Here is a man that comes with information long after the fact deposedto, and, after having left to another the communication of hisintelligence to the proper authority, that other neglects the matter. Noletter of Mr. Markham's appears, communicating any such conversation toMr. Hastings: and, indeed, why he did not do so must appear very obviousto your Lordships; for a more contemptible, ridiculous, and absurd storynever was invented. Does Mr. Balfour come forward and tell him who hisinformant was? No. Does he say, "He was an informant whom I dare notname, upon account of his great consequence, and the great confidence Ihad 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 havethought proper to charge the Rajah, with having conceived rebelliousdesigns soon after the time when Mr. Hastings had declared his beliefthat no such designs had been formed. 

Mr. Hastings has done with his charge of rebellion what he did with hisdeclaration of arbitrary power: after he had vomited it up in one place, he returns to it in another. He here declares (after he had recordedhis belief that no rebellion was ever intended) that Mr. Markham was inpossession of information which he might have believed, if it had beencommunicated to him. Good heavens! when you review all thesecircumstances, and consider the principles upon which this man was triedand punished, what must you think of the miserable situation of personsof the highest rank in that country, under the government of men who aredisposed to disgrace and ruin them in this iniquitous manner!

Mr. Balfour is in Europe, I believe. How comes it that he is notproduced here to tell your Lordships who was his informer, and what heknows of the transaction? They have not produced him, but have thoughtfit to rely upon this miserable, beggarly semblance of evidence, thevery production of which was a crime, when brought forward for thepurpose 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 ofrevenue in the province of Rohilcund: a country now ruined anddesolated, but once the garden of the world. It was from the depth ofthat horrible devastating system that he gave this ridiculous, contemptible evidence, which if it can be equalled, I shall admit thatthere 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 theresult of all this iniquity. The Rajah himself is punished, he is ruinedand 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 possessionof; but there was nothing found in them. It is the report of thecountry, and is so stated by Mr. Hastings, that he carried away with himin gold and silver to the value of about 400, 000_l. _; and thus that sumwas totally lost, even as an object of plunder, to the Company. Theauthor of the mischief lost his favorite object by his cruelty andviolence. If Mr. Hastings had listened to Cheyt Sing at first, --if hehad answered his letters, and dealt civilly with him, --if he hadendeavored afterwards to compromise matters, --if he had _told_ him whathis demands were, --if, even after the rebellion had broken out, he haddemanded and exacted a fine, --the Company would have gained 220, 000_l. _at least, and perhaps a much larger sum, without difficulty. They wouldnot then have had 400, 000_l. _ carried out of the country by a tributarychief, to become, as we know that sum has become, the plunder of theMahrattas and our other enemies. I state to you the account of theprofit 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 hemight have got. Mr. Hastings lost it all; and the Company lost the400, 000_l. _ which he meant to exact. It was carried from the Britishdominions to enrich its enemies forever. 

This man, my Lords, has not only acted thus vindictively himself, but hehas avowed the principle of revenge as a general rule of policy, connected with the security of the British government in India. He hasdared to declare, that, if a native once draws his sword, he is not tobe pardoned; that you never are to forgive any man who has killed anEnglish soldier. You are to be implacable and resentful; and there isno maxim of tyrants, which, upon account of the supposed weakness ofyour government, you are not to pursue. Was this the conduct of theMogul conquerors of India? and must this _necessarily_ be the policy oftheir Christian successors? I pledge myself, if called upon, to provethe contrary. I pledge myself to produce, in the history of the Mogulempire, a series of pardons and amnesties for rebellions, from itsearliest establishments, and in its most distant provinces. 

I need not state to your Lordships what you know to be the trueprinciples of British policy in matters of this nature. When there hasbeen provocation, you ought to be ready to listen to terms ofreconciliation, even after war has been made. This you ought to do, toshow that you are placable; such policy as this would doubtless be ofthe greatest benefit and advantage to you. Look to the case of SujahDowlah. You had, in the course of a war with him, driven him from hiscountry; you had not left him in possession of a foot of earth in theworld. The Mogul was his sovereign, and, by his authority, it was inyour power to dispose of the vizierate, and of every office of statewhich 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 reëstablished him in all hispower, you gave him more than he before possessed; and you had no reasonto repent your generosity. Your magnanimity and justice proved to be thebest policy, and was the subject of admiration from one end of India tothe other. But Mr. Hastings had other maxims and other principles. Youare 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 withthe rapacity, but not with the talons and beak, of a vulture. He went tolook 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 thecountry some further food for Mr. Hastings's rapacity. There was a placecalled Bidjegur, one of those forts which Mr. Hastings declared couldnot be safely left in the possession of the Rajah; measures weretherefore taken to obtain possession of this place, soon after theflight of its unfortunate proprietor. And what did he find in it? Agreat and powerful garrison? No, my Lords: he found in it the wives andfamily of the Rajah; he found it inhabited by two hundred women, anddefended by a garrison of eunuchs and a few feeble militia-men. Thisfortress was supposed by him to contain some money, which he hoped tolay hold of when all other means of rapacity had escaped him. He firstsends (and you have it on your minutes) a most cruel, most atrocious, and most insulting message to these unfortunate women; one of whom, aprincipal personage of the family, we find him in the subsequentnegotiation scandalizing in one minute, and declaring to be a woman ofrespectable character in the next, --treating her by turns as aprostitute and as an amiable woman, as best suited the purposes of thehour. 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 theirsupport, thinking that it would be secure to them as their property, because they were persons wholly void of guilt, as they must needs havebeen. This money the Rajah might have carried off with him; but he leftit them, and we must presume that it was their property; and no attemptwas ever made by Mr. Hastings to prove otherwise. They had no otherproperty that could be found. It was the only means of subsistence forthemselves, their children, their domestics, and dependants, and for thewhole 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 theyare 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 samelust of plunder as himself, stimulated them to demand the plunder of theplace, and expresses his hopes that no composition would be made withthese women, and that not one shilling of the booty would be allowedthem. He does not trust to their acting as soldiers who have theirfortunes to make; but he stimulates and urges them not to give way tothe generous passions and feelings of men. 

He thus writes from Benares, the 22d of October, 1781, ten o'clock inthe morning. "I am this instant favored with yours of yesterday; mine toyou of the same date has before this time acquainted you with myresolutions and sentiments respecting the Ranny. I think every demandshe has made to you, except that of safety and respect for her person, is unreasonable. If the reports brought to me are true, your rejectingher offers, or any negotiation with her, would soon obtain youpossession of the fort upon your own terms. I apprehend that she willcontrive to defraud the captors of a considerable part of the booty bybeing suffered to retire without examination; but this is yourconsideration, and not mine. I should be sorry that your officers andsoldiers 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 theexpediency of the promised indulgence to the Ranny. What you haveengaged for I will certainly ratify; but as to permitting the Ranny tohold the purgunnah of Hurluk, or any other in the zemindary, withoutbeing subject to the authority of the zemindar, or any lands whatever, or indeed making any conditions with her for a provision, I will neverconsent to it. "

My Lords, you have seen the principles upon which this man justifies hisconduct. Here his real nature, character, and disposition break out. These women had been guilty of no rebellion; he never charged them withany crime but that of having wealth; and yet you see with what ferocityhe pursues everything that belonged to the destined object of his cruel, inhuman, and more than tragic revenge. "If, " says he, "you have made anagreement with them, and will insist upon it, I will keep it; but if youhave not, I beseech you not to make any. Don't give them anything;suffer no stipulations whatever of a provision for them. Thecapitulation I will ratify, provided it contains no article of futureprovision for them. " This he positively forbade; so that hisbloodthirsty vengeance would have sent out these two hundred innocentwomen to starve naked in the world. 

But he not only declares that the money found in the fort is thesoldiers', he adds, that he should be sorry, if they lost a shilling ofit. So that you have here a man not only declaring that the money wastheirs, directly contrary to the Company's positive orders upon othersimilar occasions, and after he had himself declared that prize-moneywas poison to soldiers, but directly inciting them to insist upon theirright to it. 

A month had been allowed by proclamation for the submission of allpersons who had been in rebellion, which submission was to entitle themto indemnity. But, my Lords, he endeavored to break the public faithwith these women, by inciting the soldiers to make no capitulation withthem, and thus depriving them of the benefit of the proclamation, bypreventing their voluntary surrender. 

 [_Mr. Burke here read the proclamation. _]

From the date of this proclamation it appears that the surrender of thefort was clearly within the time given to those who had been guilty ofthe most atrocious acts of rebellion to repair to their homes and enjoyan indemnity. These women had never quitted their homes, nor had theybeen charged with rebellion, and yet they were cruelly excluded from thegeneral indemnity; and after the army had taken unconditional possessionof the fort, they were turned out of it, and ordered to the quarters ofthe commanding officer, Major Popham. This officer had received from Mr. Hastings a power to rob them, a power to plunder them, a power todistribute the plunder, but no power to give them any allowance, nor anyauthority 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 haveprevented it. They agreed amongst themselves to give to these womenthree lacs of rupees, and some trifle more; and the rest was divided asa 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'sproperty, or the property of any person but the unfortunate women whowere 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 muchunprofitable violence, so much tyranny, and so little pecuniaryadvantage, --so much bloodshed, without any profit to the Company. Hetherefore breaks his faith with the soldiers; declares, that, having noright to the money, they must refund it to the Company; and on theirrefusal, he instituted a suit against them. With respect to the threelacs 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 receiptor voucher to verify their having received one sixpence of it? I amrather 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 kindof vouchers for the disposal of any large sums of money which passthrough 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 thoughtproper to make, on the part of the Company, to the treasure found in thefort of Bidjegur, after he had instigated the army to claim it as theright of the captors. Your Lordships will not be at a loss to accountfor this strange and barefaced inconsistency. This excellent Governorforesaw that he would have a bad account of this business to give to thecontractors in Leadenhall Street, who consider laws, religion, morality, and the principles of state policy of empires as mere questions ofprofit and loss. Finding that he had dismal accounts to give of greatsums expended without any returns, he had recourse to the only expedientthat 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 hisproclamation offered. Then, finding that the soldiers had taken him athis word, and appropriated the treasure to their own use, he next brokehis faith with them. A constant breach of faith is a maxim with him. Heclaims the treasure for the Company, and institutes a suit before SirElijah Impey, who gives the money to the Company, and not to thesoldiers. The soldiers appeal; and since the beginning of this trial, Ibelieve even very lately, it has been decided by the Council that theletter of Mr. Hastings was not, as Sir Elijah Impey pretended, a mereprivate 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. _ wastaken away by Cheyt Sing, to be pillaged by all the Company's enemiesthrough whose countries he passed; and so ended one of the greatsources from which this great financier intended to supply theexigencies of the Company, and recruit their exhausted finances. 

By this proceeding, my Lords, the national honor is disgraced, all therules of justice are violated, and every sanction, human and divine, trampled upon. We have, on one side, a country ruined, a noble familydestroyed, a rebellion raised by outrage and quelled by bloodshed, thenational faith pledged to indemnity, and that indemnity faithlesslywithheld from helpless, defenceless women; while the other side of thepicture is equally unfavorable. The East India Company have had theirtreasure wasted, their credit weakened, their honor polluted, and theirtroops employed against their own subjects, when their services wererequired against foreign enemies. 

My Lords, it only remains for me, at this time, to make a fewobservations upon some proceedings of the prisoner respecting therevenue of Benares. I must first state to your Lordships that in theyear 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 forthe maintenance of the Rajah and his family. I wish to have this accountread, for the purpose of verifying the observations which I shall haveto make to your Lordships. 

 [_Here the account was read. _]

I must now observe to your Lordships, that Mr. Markham and Mr. Hastingshave stated the Rajah's net revenue at forty-six lacs: but the accountsbefore you state it at forty lacs only. Mr. Hastings had himselfdeclared that he did not think the country could safely yield more, andthat any attempt to extract more would be ruinous. 

Your Lordships will observe that the first of these estimates isunaccompanied with any document whatever, and that it is contradicted bythe papers of receipt and the articles of account, from all of which itappears that the country never yielded more than forty lacs during thetime that Mr. Hastings had it in his possession; and you may be sure hesqueezed as much out of it as he could. He had his own Residents, --firstMr. Markham, then Mr. Fowke, then Mr. Grant; they all went up with adesign to make the most of it. They endeavored to do so; but they nevercould screw it up to more than forty lacs by all the violent means whichthey employed. The ordinary subsidy, as paid at Calcutta by the Rajah, amounted to twenty-two lacs; and it is therefore clearly proved by thispaper, that Mr. Hastings's demand of fifty lacs (500, 000_l. _), joined tothe subsidies, was more than the whole revenue which the country couldyield. What hoarded treasure the Rajah possessed, and which Mr. Hastingssays he carried off with him, does not appear. That it was anyconsiderable sum is more than Mr. Hastings knows, more than can beproved, more than is probable. He had not, in his precipitate flight, any means, I think, of carrying away a great sum. It further appearsfrom these accounts, that, after the payment of the subsidy, there wouldonly have been left 18, 000_l. _ a year for the support of the Rajah'sfamily and establishments. 

Your Lordships have now a standard, not a visionary one, but a standardverified by accurate calculation and authentic accounts. You may nowfairly estimate the avarice and rapacity of this man, who describescountries to be enormously rich in order that he may be justified inpillaging them. But however insatiable the prisoner's avarice may be, hehas other objects in view, other passions rankling in his heart, besidesthe lust of money. He was not ignorant, and we have proved it by his ownconfession, that his pretended expectation of benefit to the Companycould not be realized; but he well knew that by enforcing his demands heshould utterly and effectually ruin a man whom he mortally hated andabhorred, --a man who could not, by any sacrifices offered to theavarice, avert the cruelty of his implacable enemy. As long as truthremains, as long as figures stand, as long as two and two are four, aslong as there is mathematical and arithmetical demonstration, so longshall his cruelty, rage, ravage, and oppression remain evident to anastonished posterity. 

I shall undertake, my Lords, when this court meets again, to develop theconsequences of this wicked proceeding. I shall then show you that thatpart 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 aprosperous condition, was left by him in such a state as would move pityin 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 makegood our charge against the prisoner at your bar; but as a long time haselapsed since your Lordships heard that charge, I shall take the libertyof requesting my worthy fellow Manager near me to read that part to yourLordships which I am just now going to observe upon, that you may be thebetter able to apply my observations to the letter of the charge. 

 [_Mr. Wyndham reads. _]

"That the said Warren Hastings, having, as aforesaid, expelled the saidCheyt Sing from his dominions, did, of his own usurped authority, andwithout any communication with or any approbation given by the othermembers of the Council, nominate and appoint Rajah Mehip Narrain to thegovernment of the provinces of Benares, and did appoint his father, Durbege Sing, as administrator of his authority, and did give to theBritish Resident, William Markham, a controlling authority over both;and did farther abrogate and set aside all treaties and agreements whichsubsisted between the state of Benares and the British nation; and didarbitrarily and tyrannically, of his mere authority, raise the tributeto the sum of four hundred thousand pounds sterling, or thereabouts; didfurther wantonly and illegally impose certain oppressive duties upongoods and merchandise, to the great injury of trade and ruin of theprovinces; and did farther dispose of, as his own, the property withinthe said provinces, by granting the same, or parts, thereof, in pensionsto such persons as he thought fit. 

"That the said Warren Hastings did, some time in the year 1782, enterinto a clandestine correspondence with William Markham, Esquire, thethen Resident at Benares, which said Markham had been by him, the saidWarren Hastings, obtruded into the said office, contrary to the positiveorders of the Court of Directors; and, in consequence of therepresentations of the said Markham, did, under pretence that the newexcessive rent or tribute was in arrear, and that the affairs of theprovinces were likely to fall into confusion, authorize and impower him, by his own private authority, to remove the said Durbege Sing from hisoffice and deprive him of his estate. 

"That the said Durbege Sing was, by the private orders and authoritiesgiven by the said Warren Hastings, and in consequence of therepresentations aforesaid, violently thrown into prison, and cruellyconfined therein, under pretence of the non-payment of the arrears ofthe tribute aforesaid. 

"That the widow of Bulwant Sing, and the Rajah Mehip Narrain, didpointedly accuse the said Markham of being the sole cause of any delayin the payment of the tribute aforesaid, and did offer to prove theinnocence of the said Durbege Sing, and also to prove that the faultsascribed to him were solely the faults of the said Markham; yet the saidWarren Hastings did pay no regard whatever to the said representations, nor make any inquiry into the truth of the same, but did accuse the saidwidow of Bulwant Sing and the Rajah aforesaid of gross presumption forthe same; and, listening to the representations of the person accused, (viz. , the Resident Markham, ) did continue to confine the said DurbegeSing in prison, and did invest the Resident Markham with authority tobestow his office upon whomsoever he pleased. 

"That the said Markham did bestow the said office of administrator ofthe provinces of Benares upon a certain person named Jagher Deo Seo, who, in order to gratify the arbitrary demands of the said WarrenHastings, was obliged greatly to distress and harass the unfortunateinhabitants of the said provinces. 

"That the said Warren Hastings did, some time in the year 1784, removethe said Jagher Deo Seo from the said office, under pretence of certainirregularities and oppressions; which irregularities and oppressions aresolely imputable to him, the said Warren Hastings. 

"That the consequences of all these violent changes and arbitrary actswere the total ruin and desolation of the country, and the flight of theinhabitants: the said Warren Hastings having found every place abandonedat his approach, even by the officers of the very government which heestablished, and seeing nothing but traces of devastation in everyvillage, the provinces in effect without a government, theadministration misconducted, the people oppressed, trade discouraged, and the revenue in danger of a rapid decline. 

"All which destruction, devastation, oppression, and ruin are solelyimputable to the abovementioned and other arbitrary, illegal, unjust, and tyrannical acts of him, the said Warren Hastings, who, by all andevery one of the same, was and is guilty of high crimes andmisdemeanors. "

 [_Mr. Burke proceeded. _]

My Lords, you have heard the charge; and you are now going to see theprisoner at your bar in a new point of view. I will now endeavor todisplay him in his character of a legislator in a foreign land, notaugmenting the territory, honor, and power of Great Britain, andbringing the acquisition under the dominion of law and liberty, butdesolating a flourishing country, that to all intents and purposes wasour own, --a country which we had conquered from freedom, fromtranquillity, order, and prosperity, and submitted, through him, toarbitrary power, misrule, anarchy, and ruin. We now see the object ofhis corrupt vengeance utterly destroyed, his family driven from theirhome, his people butchered, his wife and all the females of his familyrobbed and dishonored in their persons, and the effects which husbandand parents had laid up in store for the subsistence of their families, all the savings of provident economy, distributed amongst a rapacioussoldiery. His malice is victorious. He has well avenged, in thedestruction of this unfortunate family, the Rajah's intended visit toGeneral Clavering; he has well avenged the suspected discovery of hisbribe 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 justifiesthe bounty of Fortune, bestowing on him this strange and anomalousconquest. Anomalous I call it, my Lords, because it was the result of noplan in the cabinet, no operation in the field. No act or directionproceeded from him, the responsible chief, except the merciless orders, and the grant to the soldiery. He lay skulking and trembling in the fortof Chunar, while the British soldiery entitled themselves to the plunderwhich he held out to them. Nevertheless, my Lords, he conquers; thecountry is his own; he treats it as his own. Let us, therefore, see howthis successor of Tamerlane, this emulator of Genghis Khân, governs acountry conquered by the talents and courage of others, withoutassistance, guide, direction, or counsel given by himself. 

My Lords, I will introduce his first act to your Lordships' notice inthe words of the charge. 

"The said Warren Hastings did, some time in the year 1782, enter into aclandestine correspondence with William Markham, Esquire, the thenResident at Benares; which said Markham had been by him, the said WarrenHastings, obtruded into the said office, contrary to the positive ordersof the Court of Directors. "

This unjustifiable obtrusion, this illegal appointment, shows you at thevery outset that he defies the laws of his country, --most positively andpointedly defies them. In attempting to give a reason for this defiance, he has chosen to tell a branch of the legislature from which originatedthe act which wisely and prudently ordered him to pay implicit obedienceto the Court of Directors, that he removed Mr. Fowke from Benares, contrary to the orders of the Court, on political grounds; because, sayshe, "I thought it necessary the Resident there should be a man of my ownnomination and confidence. I avow the principle, and think no governmentcan subsist without it. The punishment of the Rajah made no part of mydesign in Mr. Fowke's removal or Mr. Markham's appointment, nor was hispunishment an object of my contemplation at the time I removed Mr. Fowketo appoint Mr. Markham: an appointment of my own choice, and a signal tonotify 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 asignal to notify the restoration of my own authority, as I had beforeremoved Mr. Fowke for the same purpose. "

I must beg your Lordships to keep in mind that the greater part of theobservations with which I shall trouble you have a reference to the_principles_ upon which this man acts; and I beseech you to rememberalways that you have before you a question and an issue of law; Ibeseech you to consider what it is that you are disposing of, --that youare not merely disposing of this man and his cause, but that you aredisposing of the laws of your country. 

You, my Lords, have made, and we have made, an act of Parliament inwhich the Council at Calcutta is vested with a special power, distinctlylimited and defined. He says, "My authority is absolute. I defy theorders of the Court of Directors, because it is necessary for me to showthat I can disregard them, as a signal of my own authority. " He supposeshis authority gone while he obeys the laws; but, says he, "the moment Igot rid of the bonds and barriers of the laws, " (as if there had beensome act of violence and usurpation that had deprived him of hisrightful powers, ) "I was restored to my own authority. " What is thisauthority to which he is restored? Not an authority vested in him by theEast India Company; not an authority sanctioned by the laws of thiskingdom. It is neither of these, but the authority of Warren Hastings;an inherent divine right, I suppose, which he has thought proper toclaim as belonging to himself; something independent of the laws, something independent of the Court of Directors, something independentof his brethren of the Council. It is "my own authority. "

And what is the signal by which you are to know when this authority isrestored? By his obedience to the Court of Directors?--by his attentionto 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 authorityis a formal disobedience of the orders of the Court of Directors. Whenyou find the laws of the land trampled upon, and their appointedauthority despised, then you may be sure that the authority of theprisoner is reëstablished. 

There is, my Lords, always a close connection between vices of everydescription. The man who is a tyrant would, under some othercircumstances, be a rebel; and he that is a rebel would become a tyrant. They are things which originally proceed from the same source. They owetheir birth to the wild, unbridled lewdness of arbitrary power. Theyarise from a contempt of public order, and of the laws and institutionswhich curb mankind. They arise from a harsh, cruel, and ferociousdisposition, impatient of the rules of law, order, and morality: andaccordingly, as their relation varies, the man is a tyrant, if asuperior, a rebel, if an inferior. But this man, standing in a middlepoint between the two relations, the superior and inferior, declareshimself at once both a rebel and a tyrant. We therefore naturallyexpect, that, when he has thrown off the laws of his country, he willthrow off all other authority. Accordingly, in defiance of thatauthority to which he owes his situation, he nominates Mr. Markham tothe Residency at Benares, and therefore every act of Mr. Markham is his. He is responsible, --doubly responsible to what he would have been, if inthe ordinary course of office he had named this agent. Every governor isresponsible for the misdemeanors committed under his legal authority forwhich he does not punish the delinquent; but the prisoner is doublyresponsible in this case, because he assumed an illegal authority, whichcan be justified only, if at all, by the good resulting from theassumption. 

Having now chosen his principal instrument and his confidential and solecounsellor, having the country entirely in his hand, and every obstaclethat could impede his course swept out of the arena, what does he dounder these auspicious circumstances? You would imagine, that, in thefirst place, he would have sent down to the Council at Calcutta ageneral view of his proceedings, and of their consequences, togetherwith a complete statement of the revenue; that he would have recommendedthe fittest persons for public trusts, with such other measures as hemight judge to be most essential to the interest and honor of hisemployers. One would have imagined he would have done this, in orderthat the Council and the Court of Directors might have a clear view ofthe whole existing system, before he attempted to make a permanentarrangement for the administration of the country. But, on the contrary, the whole of his proceedings is clandestinely conducted; there is notthe slightest communication with the Council upon the business, till hehad determined and settled the whole. Thus the Council was placed in acomplete dilemma, --either to confirm all his wicked and arbitrary acts, (for such we have proved them to be, ) or to derange the wholeadministration of the country again, and to make another revolution ascomplete and dreadful as that which he had made. 

The task which the Governor-General had imposed upon himself was, Iadmit, a difficult one; but those who pull down important ancientestablishments, who wantonly destroy modes of administration and publicinstitutions under which a country has prospered, are the mostmischievous, and therefore the wickedest of men. It is not a reverse offortune, it is not the fall of an individual, that we are here talkingof. We are, indeed, sorry for Cheyt Sing and Durbege Sing, as we shouldbe sorry for any individual under similar circumstances. 

It is wisely provided in the constitution of our heart, that we shouldinterest ourselves in the fate of great personages. They are thereforemade everywhere the objects of tragedy, which addresses itself directlyto our passions and our feelings. And why? Because men of great place, men of great rank, men of great hereditary authority, cannot fallwithout a horrible crash upon all about them. Such towers cannot tumblewithout ruining their dependent cottages. 

The prosperity of a country, that has been distressed by a revolutionwhich has swept off its principal men, cannot be reëstablished withoutextreme difficulty. This man, therefore, who wantonly and wickedlydestroyed the existing government of Benares, was doubly bound to useall possible care and caution in supplying the loss of thoseinstitutions which he had destroyed, and of the men whom he had driveninto exile. This, I say, he ought to have done. Let us now see what hereally did do. 

He set out by disposing of all the property of the country as if it washis own. He first confiscated the whole estates of the _Baboos_, thegreat nobility of the country, to the amount of six lacs of rupees. Hethen distributed the lands and revenue of the country according to hisown pleasure; and as he had seized the lands without our knowing why orwherefore, so the portion which he took away from some persons he gaveto others, in the same arbitrary manner, and without any assignablereason. 

When we were inquiring what jaghires Mr. Hastings had thought proper togrant, we found, to our astonishment, (though it is natural that hismind should take this turn, ) that he endowed several charities withjaghires. He gave a jaghire to some Brahmins to pray for the perpetualprosperity of the Company, and others to procure the prayers of the sameclass of men for himself. I do not blame his Gentoo piety, when I findno Christian piety in the man: let him take refuge in any superstitionhe pleases. The crime we charge is his having distributed the lands ofothers at his own pleasure. Whether this proceeded from piety, fromostentation, or from any other motive, it matters not. We contend thathe ought not to have distributed such land at all, --that he had noright to do so; and consequently, the gift of a single acre of land, byhis own private will, was an act of robbery, either from the public orsome individual. 

When he had thus disturbed the landed property of Benares, anddistributed it according to his own will, he thought it would be properto fix upon a person to govern the country; and of this person hehimself made the choice. It does not appear that the people could havelost, even by the revolt of Cheyt Sing, the right which was inherent inthem to be governed by the lawful successor of his family. We find, however, that this man, by his own authority, by the arbitrary exerciseof his own will and fancy, did think proper to nominate a person tosucceed the Rajah who had no legal claims to the succession. He madechoice of a boy about nineteen years old; and he says he made thatchoice upon the principle of this boy's being descended from BulwantSing by the female line. But he does not pretend to say that he was theproper and natural heir to Cheyt Sing; and we will show you the directcontrary. Indeed, he confesses the contrary himself; for he argues, inhis defence, that, when a new system was to be formed with the successorof Cheyt Sing who was not his heir, such successor had no claim ofright. 

But perhaps the want of right was supplied by the capacity and fitnessof the person who was chosen. I do not say that this does or can for onemoment supersede the positive right of another person; but it wouldpalliate the injustice in some degree. Was there in this case anypalliative matter? Who was the person chosen by Mr. Hastings to succeedCheyt Sing? My Lords, the person chosen was a minor: for we find theprisoner at your bar immediately proceeded to appoint him a guardian. This guardian he also chose by his own will and pleasure, as he himselfdeclares, without referring to any particular claim or usage, --withoutcalling the Pundits to instruct him, upon whom, by the Gentoo laws, theguardianship devolved. 

I admit, that, in selecting a guardian, he did not, in one respect, actimproperly; for he chose the boy's father, and he could not have chosena better guardian for his person. But for the administration of hisgovernment qualities were required which this man did not possess. Heshould have chosen a man of vigor, capacity, and diligence, a man fit tomeet the great difficulties of the situation in which he was to beplaced. 

Mr. Hastings, my Lords, plainly tells you that he did not think theman's talents to be extraordinary, and he soon afterwards says that hehad a great many incapacities. He tells you that he has a doubt whetherhe was capable of realizing those hopes of revenue which he (Mr. Hastings) had formed. Nor can this be matter of wonder, when we considerthat he had ruined and destroyed the ancient system, the whole schemeand tenor of public offices, and had substituted nothing for them buthis own arbitrary will. He had formed a plan of an entire new system, inwhich the practical details had no reference to the experience andwisdom of past ages. He did not take the government as he found it; hedid not take the system of offices as it was arranged to his hand; buthe dared to make the wicked and flagitious experiment which I havestated, --an experiment upon the happiness of a numerous people, whoseproperty he had usurped and distributed in the manner which has beenlaid before your Lordships. The attempt failed, and he is responsiblefor the consequences. 

How dared he to make these experiments? In what manner can he bejustified for playing fast and loose with the dearest interests, andperhaps with the very existence, of a nation? Attend to the manner inwhich he justifies himself, and you will find the whole secret let out. "The easy accumulation of too much wealth, " he says, "had been CheytSing's ruin; it had buoyed him up with extravagant and ill-foundednotions of independence, which I very much wished to discourage in thefuture Rajah. Some part, therefore, of the superabundant produce in thecountry I turned into the coffers of the sovereign by an augmentation ofthe tribute. "--Who authorized him to make any augmentation of thetribute? But above all, who authorized him to augment it upon thisprinciple?--"I must take care the tributary prince does not grow toorich; if he gets rich, he will get proud. "--This prisoner has got ascale 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 thenew Rajah in a state of poverty; because, if he grows rich, he willbecome proud, and behave as Cheyt Sing did. You see the ground, foundation, and spirit of the whole proceeding. Cheyt Sing was to berobbed. Why? Because he is too rich. His successor is to be reduced to amiserable condition. Why? Lest he should grow rich and becometroublesome. The whole of his system is to prevent men from growingrich, lest, if they should grow rich, they should grow proud, and seekindependence. Your Lordships see that in this man's opinion riches mustbeget pride. I hope your Lordships will never be so poor as to cease tobe proud; for, ceasing to be proud, you will cease to be independent. 

Having resolved that the Rajah should not grow rich, for fear he shouldgrow proud and independent, he orders him to pay forty lacs of rupees, or 400, 000_l. _, annually to the Company. The tribute had before been250, 000_l. _, and he all at once raised it to 400, 000_l. _ Did hepreviously inform the Council of these intentions? Did he inform them ofthe amount of the gross collections of the country, from any properlyauthenticated accounts procured from any public office?

I need not inform your Lordships, that it is a serious thing to draw outof a country, instead of 250, 000_l. _, an annual tribute of 400, 000_l. _There were other persons besides the Rajah concerned in this enormousincrease of revenue. The whole country is interested in its resourcesbeing fairly estimated and assessed; for, if you overrate the revenuewhich it is supposed to yield to the great general collector, younecessitate him to overrate every under-collector, and thereby instigatethem to harass and oppress the people. It is upon these grounds that wehave charged the prisoner at your bar with having acted arbitrarily, illegally, unjustly, and tyrannically: and your Lordships will bear inmind that these acts were done by his sole authority, which authority wehave 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 hadthe advantage of him in this respect, for he was twenty-one. He had alsothe benefit of five months' experience of the country: an abundantexperience, to be sure, my Lords, in a country where it is well known, from the peculiar character of its inhabitants, that a man cannotanywhere put his foot without placing it upon some trap or mine, untilhe is perfectly acquainted with its localities. Nevertheless, he putsthe whole country and a prince of nineteen, as appears from theevidence, into the hands of Mr. Markham, a man of twenty-one. We have nodoubt of Mr. Markham's capacity; but he could have no experience in acountry over which he possessed a general controlling power. Under thesecircumstances, we surely shall not wonder, if this young man fell intoerror. I do not like to treat harshly the errors into which a very youngperson may fall: but the man who employs him, and puts him into asituation for which he has neither capacity nor experience, isresponsible 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 theCourt of Directors. 

But, my Lords, let us proceed. We find Mr. Hastings resolved to exactforty lacs from the country, although he had no proof that such atribute could be fairly collected. He next assigns to this boy, theRajah, emoluments amounting to about 60, 000_l. _ a year. Let us now seeupon what grounds he can justify the assignment of these emoluments. Ican perceive none but such as are founded upon the opinion of its beingnecessary 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, ashe had been a witness to the deposition of the former, comes before youto give an account of what he thought of Cheyt Sing, who appears to haveproperly supported the dignity of his situation, he tells you that abouta lac or a lac and a half (10, 000_l. _ or 15, 000_l. _) a year was as muchas Cheyt Sing could spend. And yet this young creature, settled in thesame country, and who was to pay 400, 000_l. _ a year, instead of250, 000_l. _, tribute to the Company, was authorized by Mr. Hastings tocollect and reserve to his own use 60, 000_l. _ out of the revenue. Thatis 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 supporthim. 

Your Lordships tread upon corruption everywhere. Why was such a largerevenue given to the young Rajah to support his dignity, when, as theysay, Cheyt Sing did not spend above a lac and half in support ofhis, --though it is known he had great establishments to maintain, thathe 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 theimpost imposed upon it. I ask, How did they know this? We have proved toyou, by a paper presented here by Mr. Markham, that the net amount ofthe collections was about 360, 000_l. _ This is their own account, and wasmade up, as Mr. Markham says, by one of the clerks of Durbege Sing, together with his Persian moonshee, (a very fine council to settle therevenues of the kingdom!) in his private house. And with this accountbefore them, they have dared to impose upon the necks of that unhappypeople a tribute of 400, 000_l. _, together with an income for the Rajahof 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 Ispeak of the net proceeds of the collections. We have nothing to do withthe 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 publictreasury that these payments were to be made, because there could be noother honest way of getting the money. 

But let us now come to the main point, which is to ascertain what sumsthe country could really bear. Mr. Hastings maintains (whether in thespeech of his counsel or otherwise I do not recollect) that the revenueof the country was 400, 000_l. _, that it constantly paid that sum, andflourished under the payment. In answer to this, I refer your Lordships, first, to Mr. Markham's declaration, and the Wassil Baakee, which is inpage 1750 of the printed Minutes. I next refer your Lordships to Mr. Duncan's Reports, in page 2493. According to Mr. Duncan's publicestimate of the revenue of Benares, the net collections of the very yearwe are speaking of, when Durbege Sing had the management, and when Mr. Markham, his Persian moonshee, and a clerk in his private house, madetheir estimates without any documents, or with whatever documents, orGod only knows, for nothing appears on the record of thetransaction, --the collections yielded in that year but 340, 000_l. _, thatis, 20, 000_l. _ less than Mr. Markham's estimate. But take it which wayyou 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 reserving60, 000_l. _ for his own private expenses, the Rajah could not realize asum nearly equal to the tribute demanded. 

Your Lordships have also in evidence before you an account of theproduce of the country for I believe full five years after this period, from which it appears that it never realized the forty lacs, or anythinglike it, --yielding only thirty-seven and thirty-nine lacs, orthereabouts, which is 20, 000_l. _ short of Mr. Markham's estimate, and160, 000_l. _ short of Mr. Hastings's. On what data could the prisoner atyour bar have formed this estimate? Where were all the clerks andmutsuddies, where were all the men of business in Benares, who couldhave given him complete information upon the subject? We do not find thetrace of any of them; all our information is Mr. Markham's moonshee, andsome clerk of Durbege Sing's employed in Mr. Markham's privatecounting-house, in estimating revenues of a country. 

The disposable revenue was still further reduced by the jaghires whichMr. Hastings granted, but to what amount does not appear. He mentionsthe increase in the revenue by the confiscation of the estates of theBaboos, who had been in rebellion. This he rates at six lacs. But wehave inspected the accounts, we have examined them with that sedulousattention which belongs to that branch of the legislature that has thecare of the public revenues, and we have not found one trace of thisaddition. Whether these confiscations were ever actually made remainsdoubtful; but if they were made, the application or the receipt of themoney they yielded does not appear in any account whatever. I leave yourLordships to judge of this. 

But it may be said that Hastings might have been in an error. If he wasin an error, my Lords, his error continued an extraordinary length oftime. The error itself was also extraordinary in a man of business: itwas an error of account. If his confidential agent, Mr. Markham, hadoriginally contributed to lead him into the error, he soon perceived it. He soon informed Mr. Hastings that his expectations were erroneous, andthat he had overrated the country. What, then, are we to think of hispersevering in this error? Mr. Hastings might have formed extravagantand wild expectations, when he was going up the country to plunder; forwe allow that avarice may often overcalculate the hoards that it isgoing to rob. If a thief is going to plunder a banker's shop, hisavarice, when running the risk of his life, may lead him to imaginethere is more money in the shop than there really is. But when this manwas in possession of the country, how came he not to know and understandthe condition of it better? In fact, he was well acquainted with it; forhe has declared it to be his opinion that forty lacs was an overratedcalculation, and that the country could not continue to pay this tributeat the very time he was imposing it. You have this admission in page 294of the printed Minutes; but in the very face of it he says, if the Rajahwill exert himself, and continue for some years the regular payment, hewill then grant him a remission. Thus the Rajah was told, what he wellknew, that he was overrated, but that at some time or another he was toexpect a remission. And what, my Lords, was the condition upon which hewas to obtain this promised indulgence? The punctual payment of thatwhich Mr. Hastings declares he was not able to pay, --and which he couldnot pay without ruining the country, betraying his own honor andcharacter, and acting directly contrary to the duties of the station inwhich Mr. Hastings had placed him. Thus this unfortunate man wascompelled to have recourse to the most rigorous exaction, that he mightbe enabled to satisfy the exorbitant demand which had been made uponhim. 

But let us suppose that the country was able to afford the sum at whichit was assessed, and that nothing was required but vigor and activity inthe Rajah. Did Mr. Hastings endeavor to make his strength equal to thetask imposed on him? No: the direct contrary. In proportion as heaugmented the burdens of this man, in just that proportion he took awayhis strength and power of supporting these burdens. There was not one ofthe external marks of honor which attended the government of Cheyt Singthat he did not take away from the new Rajah; and still, when this newman came to his new authority, deprived of all external marks ofconsequence, and degraded in the opinion of his subjects, he was toextort from his people an additional revenue, payable to the Company, offifteen lacs of rupees more than was paid by the late Rajah in all theplenitude of undivided authority. To increase this difficulty stillmore, the father and guardian of this inexperienced youth was a man whohad no credit or reputation in the country. This circumstance alone wasa sufficient drawback from the weight of his authority; but Mr. Hastingstook care that he should be divested of it altogether; for, as ourcharge 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 tostrike such bold and hardy strokes as would be efficient without beingoppressive? Could he or any other man, thus bound and shackled, executesuch vigorous and energetic measures as were necessary to realize suchan enormous tribute as was imposed upon this unhappy country?

My Lords, I must now call your attention to another circumstance, notmentioned in the charge, but connected with the appointment of the newRajah, and of his Naib, Durbege Sing, and demonstrative of the unjustand cruel treatment to which they were exposed. It appears from a letterproduced here by Mr. Markham, (upon which kind of correspondence I shalltake the liberty to remark hereafter, ) that the Rajah lived in perpetualapprehension of being removed, and that a person called Ussaun Sing wasintended as his successor. Mr. Markham, in one part of hiscorrespondence, tells you that the Rajah did not intend to hold thegovernment any longer. Why? Upon a point of right, namely, that he didnot possess it upon the same advantageous terms as Cheyt Sing; but hetells you in another letter, (and this is a much better key to the wholetransaction, ) that he was in dread of that Ussaun Sing whom I have justmentioned. This man Mr. Hastings kept ready to terrify the Rajah; andyou will, in the course of these transactions, see that there is not aman in India, of any consideration, against whom Mr. Hastings did notkeep a kind of pretender, to keep him in continual awe. This UssaunSing, whom Mr. Hastings brought up with him to Benares, was dreaded byCheyt Sing not less than by his successor. We find that he was at firstnominated Naib or acting governor of the country, but had never been putin actual possession of this high office, and Durbege Sing was appointedto it. Although Ussaun Sing was thus removed, he continued hispretensions, and constantly solicited the office. Thus the poor manappointed by Mr. Hastings, and actually in possession, was not onlycalled upon to perform tasks beyond his strength, but was overawed byMr. Markham, and terrified by Ussaun Sing, (the mortal enemy of thefamily, ) who, like an accusing fiend, was continually at his post, andunceasingly reiterating his accusations. This Ussaun Sing was, as Mr. Markham tells you, one of the causes of the Rajah's continued dejectionand despondency. But it does not appear that any of these circumstanceswere ever laid before the Council; the whole passed between Mr. Hastingsand Mr. Markham. 

Mr. Hastings having by his arbitrary will thus disposed of the revenueand of the landed property of Benares, we will now trace his furtherproceedings and their effects. He found the country most flourishing inagriculture and in trade; but not satisfied with the experiment he hadmade upon the government, upon the revenues, upon the reigning family, and upon all the landed property, he resolved to make as bold and asnovel an experiment upon the commercial interests of the country. Accordingly he entirely changed that part of the revenue system whichaffects trade and commerce, the life and soul of a state. Without anyadvice that we know of, except Mr. Markham's, he sat down to change inevery point the whole commercial system of that country; and heeffected the change upon the same arbitrary principles which he hadbefore acted upon, namely, his own arbitrary will. We are told, indeed, that he consulted bankers and merchants; but when your Lordships shallhave learned what has happened from this experiment, you will easily seewhether he did resort to proper sources of information or not. You willsee that the mischief which has happened has proceeded from the exerciseof arbitrary power. Arbitrary power, my Lords, is always a miserablecreature. When a man once adopts it as the principle of his actions, noone dares to tell him a truth, no one dares to give him any informationthat is disagreeable to him; for all know that their life and fortunedepend upon his caprice. Thus the man who lives in the exercise ofarbitrary power condemns himself to eternal ignorance. Of this theprisoner at your bar affords us a striking example. This man, withoutadvice, without assistance, and without resource, except in his ownarbitrary power, stupidly ignorant in himself, and puffed up with theconstant companion of ignorance, a blind presumption, alters the systemof commercial imposts, and thereby ruined the whole trade of thecountry, 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, wherethe whole of these trading regulations might and ought to have beenconsidered, and where they could have been deliberately examined anddetermined upon. By this assumption the Council was placed in thesituation which I have before described: it must either confirm hisacts, or again undo everything which had been done. He had provided notonly against resistance, but almost against any inquiry into his wildprojects. He had by his opium contracts put all vigilance asleep, and byhis bullock and other contracts he had secured a variety of concealedinterests, both abroad and at home. He was sure of the ratification ofhis acts by the Council, whenever he should please to inform them of hismeasures; and to his secret influence he trusted for impunity in hiscareer of tyranny and oppression. 

In bringing before you his arbitrary mode of imposing duties, I beg toremind your Lordships, that, when I examined Mr. Markham concerning theimposing of a duty of five per cent instead of the former duty of two, Iasked him whether that five per cent was not laid on in such a manner asutterly to extinguish the trade, and whether it was not in effect andsubstance five times as much as had been paid before. What was hisanswer? Why, that many plans, which, when considered in the closet, lookspecious and plausible, will not hold when they come to be tried inpractice, and that this plan was one of them. The additional duties, said he, have never since been exacted. But, my Lords, the very attemptto exact them utterly ruined the trade of the country. They were imposedupon a visionary theory, formed in his own closet, and the result wasexactly what might have been anticipated. Was it not an abominable thingin Mr. Hastings to withhold from the Council the means of ascertainingthe 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 manpossessed of no one quality fit for any kind of business whatever. Wefind him pursuing his own visionary projects, without knowing anythingof the nature or [of?] the circumstances under which the trade of thecountry was carried on. These projects might have looked very plausible:but when you come to examine the actual state of the trade, it is notmerely a difference between five and two per cent, but it becomes adifferent mode of estimating the commodity, and it amounts to five timesas much as was paid before. We bring this as an exemplification of thiscursed mode of arbitrary proceeding, and to show you his total ignoranceof the subject, and his total indifference about the event of themeasure he was pursuing. When he began to perceive his blunders, henever took any means whatever to put the new regulations which theseblunders had made necessary into execution, but he left all thismischievous project to rage in its full extent. 

I have shown your Lordships how he managed the private property of thecountry, how he managed the government, and how he managed the trade. Iam now to call your Lordships' attention to some of the consequenceswhich have resulted from the instances of management, or rather grossmismanagement, which have been brought before you. Your Lordships willrecollect that none of these violent and arbitrary measures, either intheir conception or in the progress of their execution, were officiallymade known to the Council; and you will observe, as we proved, that thesame criminal concealment existed with respect to the fatal consequencesof these acts. 

After the flight of Cheyt Sing, the revenues were punctually paid by theNaib, Durbege Sing, month by month, kist by kist, until the month ofJuly, and then, as the country had suffered some distress, the Naibwished this kist, or instalment, to be thrown on the next month. Youwill 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, andhe would, at its expiration, have the advantage of viewing the receiptsof the whole year, and ascertaining the claim of the country to theremission of a part of the annual tribute which Mr. Hastings hadpromised, provided the instalments were paid regularly. It was wellknown to everybody that the country had suffered very considerably bythe revolt, and by a drought which prevailed that year. The Rajah, therefore, expected to avail himself of Mr. Hastings's flatteringpromise, 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 demandedat the end of the year, and no remission of tribute was allowed. By thepromise of remission Mr. Hastings tacitly acknowledged that the Rajahwas overburdened; and he admits that the payment of the July kist waspostponed at the Rajah's own desire. He must have seen the Rajah'smotive for desiring delay, and he ought to have taken care that thispoor man should not be oppressed and ruined by this compliance withrequests founded on such motives. 

So passed the year 1781. No complaints of arrears in Durbege Sing'spayments appear on record before the month of April, 1782; and I wishyour Lordships seriously to advert to the circumstances attending theevidence respecting these arrears, which has been produced for the firsttime by the prisoner in his defence here at your bar. This evidence doesnot appear in the Company's records; it does not appear in the book ofthe Benares correspondence; it does not appear in any documents to whichthe Commons could have access; it was unknown to the Directors, unknownto the Council, unknown to the Residents, Mr. Markham's successors, atBenares, unknown to the searching and inquisitive eye of the Commons ofGreat Britain. This important evidence was drawn out of Mr. Markham'spocket, in the presence of your Lordships. It consists of a privatecorrespondence which he carried on with Mr. Hastings, unknown to theCouncil, after Durbege Sing had been appointed Naib, after the newgovernment had been established, after Mr. Hastings had quitted thatprovince, and had apparently wholly abandoned it, and when there was noreason whatever why the correspondence should not be public. Thisprivate correspondence of Mr. Markham's, now produced for the firsttime, is full of the bitterest complaints against Durbege Sing. Theseclandestine complaints, these underhand means of accomplishing the ruinof a man, without the knowledge of his true and proper judges, weproduce to your Lordships as a heavy aggravation of our charge, and as aproof of a wicked conspiracy to destroy the man. For if there was anydanger of his falling into arrears when the heavy accumulated kists cameupon him, the Council ought to have known that danger; they ought tohave known every particular of these complaints: for Mr. Hastings hadthen carried into effect his own plans. 

I ought to have particularly marked for your Lordships' attention thissecond era of clandestine correspondence between Mr. Hastings and Mr. Markham. It commenced after Mr. Hastings had quitted Benares, and hadnothing to do with it but as Governor-General: even after hisextraordinary, and, as we contend, illegal, power had completelyexpired, the same clandestine correspondence was carried on. Heapparently considered Benares as his private property; and just as a manacts with his private steward about his private estate, so he acted withthe Resident at Benares. He receives from him and answers letterscontaining a series of complaints against Durbege Sing, which began inApril and continued to the month of November, without making any publiccommunication of them. He never laid one word of this correspondencebefore the Council until the 29th of November, and he had thencompletely settled the fate of this Durbege Sing. 

This clandestine correspondence we charge against him as an act ofrebellion; for he was bound to lay before the Council the whole of hiscorrespondence relative to the revenue and all the other affairs of thecountry. We charge it not only as rebellion against the orders of theCompany and the laws of the land, but as a wicked plot to destroy thisman, by depriving him of any opportunity of defending himself before theCouncil, his lawful judges. I wish to impress it strongly on yourLordships' minds, that neither the complaints of Mr. Markham nor theexculpations of Durbege Sing were ever made known till Mr. Markham wasexamined in this hall. 

The first intimation afforded the Council of what had been going on atBenares from April, 1782, at which time, Mr. Markham says, thecomplaints against Durbege Sing had risen to serious importance, was ina letter dated the 27th of November following. This letter was sent tothe Council from Nia Serai, in the Ganges, where Mr. Hastings hadretired for the benefit of the air. During the whole time he was inCalcutta, it does not appear upon the records that he had ever held anycommunication with the Council upon the subject. The letter is in theprinted Minutes, page 298, and is as follows. 

"_The Governor-General. _--I desire the Secretary to lay the accompanyingletters from Mr. Markham before the board, and request that orders maybe immediately sent to him concerning the subjects contained in them. Itmay be necessary to inform the board, that, on repeated information fromMr. Markham, which indeed was confirmed to me beyond a doubt by otherchannels, and by private assurances which I could trust, that theaffairs of that province were likely to fall into the greatest confusionfrom the misconduct of Baboo Durbege Sing, whom I had appointed theNaib, fearing the dangerous consequences of a delay, and being at toogreat a distance to consult the members of the board, who I knew couldrepose that confidence in my local knowledge as to admit of thisoccasional exercise of my own separate authority, I wrote to Mr. Markhamthe letter to which he alludes, dated the 29th of September last, ofwhich I now lay before the board a copy. The first of the accompanyingletters from Mr. Markham arrived at a time when a severe return of mylate illness obliged me, by the advice of my physicians, to leaveCalcutta for the benefit of the country air, and prevented me frombringing it earlier before the notice of the board. "

I have to remark upon this part of the letter, that he claims forhimself an exercise of his own authority. He had now no delegation, andtherefore no claim to separate authority. He was only a member of theboard, obliged to do everything according to the decision of themajority, and yet he speaks of his own separate authority; and aftercomplimenting himself, he requests its confirmation. The complaints ofMr. Markham had been increasing, growing, and multiplying upon him, fromthe month of April preceding, and he had never given the leastintimation of it to the board until he wrote this letter. This was at solate a period that he then says, "The time won't wait for a remedy; I amobliged to use my own separate authority"; although he had had abundanttime for laying the whole matter before the Council. 

He next goes on to say, --"It had, indeed, been my intention, but for thesame cause, to have requested the instructions of the board for theconduct of Mr. Markham in the difficulties which he had to encounterimmediately after the date of my letter to him, and to have recommendedthe substance of it for an order to the board. " He seems to havepromised Mr. Markham, that, if the violent act which Mr. Markhamproposed, and which he, Mr. Hastings, ordered, was carried intoexecution, 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 ofDirectors, and defies the laws of his country, as a signal of hisauthority. 

Now what does he recommend to the board? That it will be pleased toconfirm the appointment which Mr. Markham made in obedience to hisindividual orders, as well as the directions which he had given him toexact from Baboo Durbege Sing with the utmost rigor every rupee of thecollections, and either to confine him at Benares or send him to Chunarand 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 feelmyself, " says he, "and may be allowed on such an occasion to acknowledgeit, personally hurt at the ingratitude of this man, and the discreditwhich his ill conduct has thrown on my appointment of him. The Rajahhimself, scarcely arrived at the verge of manhood, was in understandingbut little advanced beyond the term of childhood; and it had been thepolicy of Cheyt Sing to keep him equally secluded from the world andfrom business. " This is the character Mr. Hastings gives of a man whomhe appointed to govern the country. He goes on to say of DurbegeSing, --"As he was allowed a jaghire of a very liberal amount, to enablehim to maintain a state and consequence suitable both to the relation inwhich he stood to the Rajah and the high office which had been assignedto him, and sufficient also to free him from the temptation of littleand mean peculations, it is therefore my opinion, and I recommend, thatMr. Markham be ordered to divest him of his jaghire, and reunite it tothe _malguzaree_, or the land paying its revenue through the Rajah tothe Company. The opposition made by the Rajah and the old Ranny, bothequally incapable of judging for themselves, do certainly originate fromsome secret influence which ought to be checked by a decided andperemptory declaration of the authority of the board, and a denunciationof their displeasure at their presumption. If they can be induced toyield the appearance of a cheerful acquiescence in the new arrangement, and to adopt it as a measure formed with their participation, it wouldbe 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 alreadydone: the Naib was dismissed; he was imprisoned; his jaghire wasconfiscated: all these things were done by Mr. Hastings's orders. He hadresolved to take the whole upon himself; he had acted upon thatresolution before he addressed this letter to the board. 

Thus, my Lords, was this unhappy man punished without any previoustrial, or any charges, except the complaints of Mr. Markham, and someother 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 himof any crime, he was sent to prison, and his private estatesconfiscated. 

My Lords, the Commons of Great Britain claim from you, that no man shallbe imprisoned till a regular charge is made against him, and the accusedfairly heard in his defence. They claim from you, that no man shall beimprisoned on a matter of account, until the account is settled betweenthe parties. And claiming this, we do say that the prisoner's conducttowards Durbege Sing was illegal, unjust, violent, and oppressive. Theimprisonment of this man was clearly illegal on the part of Mr. Hastings, as he acted without the authority of the Council, and doublyoppressive, as the imprisoned man was thereby disabled from settling hisaccount with the numberless sub-accountants whom he had to deal with inthe collection of the revenue. 

Having now done with these wicked, flagitious, abandoned, and abominableacts, I shall proceed to the extraordinary powers given by Mr. Hastingsto his instrument, Mr. Markham, who was employed in perpetrating theseacts, and to the very extraordinary instructions which he gave thisinstrument for his conduct in the execution of the power intrusted tohim. In a letter to Mr. Markham, he says, --

"I need not tell you, my dear Sir, that I possess a very high opinion ofyour abilities, and that I repose the utmost confidence in yourintegrity. " He might have had reason for both, but he scarcely left toMr. Markham the use of either. He arbitrarily imposed upon him the taskswhich he wished him to execute, and he engaged to bear out his acts byhis own power. "From your long residence at Benares, " says he, "and fromthe part you have had in the business of that zemindary, you mustcertainly best know the men who are most capable and deserving of publicemployment. From among these I authorize you to nominate a Naib to theRajah, 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 hardlynecessary to except Ussaun Sing from the description of men to whom Ihave limited your choice, yet it may not be improper to apprise you thatI will on no terms consent to his being Naib. In forming thearrangements consequent upon this new appointment, I request you will, as far as you can with propriety, adopt those which were in use duringthe life of Bulwant Sing, --so far, at least, as to have distinct officesfor distinct purposes, independent of each other, and with proper men atthe head of each; so that one office may detect or prevent any abusesor irregularities in the others, and together form a system ofreciprocal checks. Upon that principle, I desire you will in particularestablish, under whatever names, one office of receipts, and another oftreasury. The officers of both must be responsible for the truth andregularity of their respective accounts, but not subject in thestatement of them to the control or interference of the Rajah or Naib;nor should they be removable at pleasure, but for manifest misconductonly. At the head of one or other of these offices I could wish to seethe late Buckshee, Rogoober Dyall. His conduct in his former office, hisbehavior on the revolt of Cheyt Sing, and particularly at the fall ofBidjegur, together with his general character, prove him worthy ofemployment, and of the notice of our government. It is possible that hemay have objections to holding an office under the present Rajah: offerhim one, however, and let him know that you do so by my directions. " Hethen goes on to say, --"Do not wholly neglect the Rajah; consult with himin appearance, but in appearance only. His situation requires that youshould do that much; but his youth and inexperience forbid that youshould do more. "

You see, my Lords, he has completely put the whole government into thehands of a man who had no name, character, or official situation, butthat of the Company's Resident at that place. Let us now see what is theoffice 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. Butwe have seen that Mr. Markham, the Resident at Benares, was invested byMr. Hastings with supreme authority in this unhappy country. He was toname whoever he pleased to its government, with the exception of UssaunSing, and to drive out the person who had possessed it under anauthority which could only be revoked by the Council. Thus Mr. Hastingsdelegated to Mr. Markham an authority which he himself did not reallypossess, and which could only be legally exercised through the medium ofthe Council. 

With respect to Durbege Sing, he adds, --"He has dishonored my choice ofhim. " _My_ choice of him! "It now only remains to guard against the illeffects of his misconduct, to detect and punish it. To this end I desirethat the officers to be appointed in consequence of these instructionsdo, with as much accuracy and expedition as possible, make out anaccount of the receipts, disbursements, and transactions of DurbegeSing, 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 atthe limited time every rupee of the revenue due to the Company, his lifeshall answer for the default. I need not caution you to provide againsthis 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, withoutany detection, even before the accounts he talks of are made up, andwithout knowing whether he has got the money or not, he declares that hewill have every rupee paid at the time, or otherwise the Naib's lifeshall pay for it. 

Is this the language of a British governor, --of a person appointed togovern _by law_ nations subject to the dominion and under the protectionof this kingdom? Is he to order a man to be first imprisoned anddeprived of his property, then, for an inquiry to be made, and todeclare, during that inquiry, that, if every rupee of a presumedembezzlement 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 alreadyhad occasion to mention to your Lordships. 

I will now read Mr. Markham's letter to the Council, in which he entersinto the charges against Durbege Sing, after this unhappy man had beenimprisoned. 

Benares, 24th of October, 1782. --"I am sorry that my duty obliges me tomention to your Honorable Board my apprehensions of a severe lossaccruing to the Honorable Company, if Baboo Durbege Sing is continued inthe Naibut during the present year. I ground my fears on the knowledge Ihave had of his mismanagement, the bad choice he has made of his aumils, the mistrust which they have of him, and the several complaints whichhave been preferred to me by the ryots of almost every purgunnah in thezemindary. I did not choose to waste the time of your Honorable Board inlistening to my representations of his inattention to the complaints ofoppression which were made to him by his ryots, as I hoped that a letterhe received from the Honorable Governor-General would have had weightsufficient to have made him more regular in his business, and morecareful of his son's interest. "

My Lords, think of the condition of your government in India! Here is aResident at Benares exercising power not given to him by virtue of hisoffice, but given only by the private orders of the prisoner at yourbar. And what is it he does? He says, he did not choose to trouble theCouncil with a particular account of his reasons for removing a man whopossessed an high office under their immediate appointment. The Councilwas not to know them: he did not choose to waste the time of theirhonorable board in listening to the complaints of the people. No: thehonorable board is not to have its time wasted in that improper manner;therefore, without the least inquiry or inquisition, the man must beimprisoned, and deprived of his office; he must have all his propertyconfiscated, and be threatened with the loss of his life. 

These are crimes, my Lords, for which the Commons of Great Britain knockat the breasts of your consciences, and call for justice. They wouldthink themselves dishonored forever, if they had not brought thesecrimes before your Lordships, and with the utmost energy demanded yourvindictive justice, to the fullest extent in which it can be rendered. 

But there are some aggravating circumstances in these crimes, which Ihave not yet stated. It appears that this unhappy and injured man was, without any solicitation of his own, placed in a situation the duties ofwhich even Mr. Hastings considered it impossible for him to execute. Instead of supporting him with the countenance of the supremegovernment, Mr. Hastings did everything to lessen his weight, hisconsequence, and authority. And when the business of the collectionbecame embarrassed, without any fault of his, that has ever yet beenproved, Mr. Markham instituted an inquiry. What kind of inquiry it wasthat would or could be made your Lordships will judge. While this wasgoing on, Mr. Markham tells you, that, in consequence of orders whichhe had received, he first put him into a gentle confinement. YourLordships know what that confinement was; and you know what it is for aman of his rank to be put into any confinement. We have shown he wasthereby incapable of transacting business. His life had been threatened, if he should not pay in the balance of his accounts within a shortlimited time; still he was subjected to confinement, while he had moneyaccounts to settle with the whole country. Could a man in gaol, dishonored and reprobated, take effectual means to recover the arrearswhich he was called upon to pay? Could he, in such a situation, recoverthe money which was unpaid to him, in such an extensive district asBenares? Yet Mr. Markham tells the Council he thought proper "thatDurbege Sing should be put under a gentle confinement, until I shallreceive your Honorable Board's orders for any future measures. " Thus Mr. Markham, without any orders from the Council, assumed an authority to dothat which we assert a Resident at Benares had no right to do, but towhich he was instigated by Mr. Hastings's recommendation that DurbegeSing should be prevented from flight. 

Now, my Lords, was it to be expected that a man of Durbege Sing's rankshould suffer these hardships and indignities, and at the same time kissthe rod and say, "I have deserved it all"? We know that all mankindrevolts at oppression, if it be real; we know that men do not willinglysubmit to punishment, just or unjust; and we find that Durbege Sing hadnear relatives, who used for his relief all the power which was leftthem, --that of remonstrating with his oppressors. Two _arzees_, orpetitions, were presented to the Council, of which we shall first callyour 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 petitionsbegins by stating, "I before this have had the honor of addressingseveral arzees to your presence; but, from my unfortunate state, not oneof them has been perused by your Highness. " My Lords, if there is anyone right secured to the subject, it is that of presenting a petitionand having that petition noticed. This right grows in importance inproportion to the power and despotic nature of the governments to whichthe petitioner is subject: for where there is no sort of remedy from anyfixed laws, nothing remains but complaint, and prayers, and petitions. This was the case in Benares: for Mr. Hastings had destroyed every traceof law, leaving only the police of the single city of Benares. Still wefind this complaint, prayer, and petition was not the first, but onlyone of many, which Mr. Hastings took no notice of, entirely despised, and never would suffer to be produced to the Council; which never knewanything, until this bundle of papers came before them, of the complaintof Mr. Markham against Durbege Sing, or of the complaint of Durbege Singagainst 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 washimself the cause of the very failure for which he imprisoned him. Nowwhat was the conduct of Mr. Hastings as judge? He has two persons beforehim: the one in the ostensible care of the revenue of the country; theother his own agent, acting under his authority. The first is accused bythe second of default in his payments; the latter is complained of bythe former, who says that the occasion of the accusation had beenfurnished by him, the accuser. The judge, instead of granting redress, dismisses the complaints against Mr. Markham with reprehension, andsends the complainant to rot in prison, without making one inquiry, orgiving himself the trouble of stating to Mr. Markham the complaintsagainst him, and desiring him to clear himself from them. My Lords, ifthere were nothing but this to mark the treacherous and perfidiousnature 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 DurbegeSing are perfectly right and proper, so far as they go; and we nowdirect that you exact from him, with the utmost rigor, every rupee ofthe collections which it shall appear that he has made and not broughtto account, and either confine him at Benares, or send him prisoner toChunar, and keep him in confinement until he shall have discharged thewhole of the amount due from him. "

He here employs the very person against whom the complaint is made toimprison the complainant. He approves the conduct of his agent withouthaving heard his defence, and leaves him, at his option, to keep hisvictim a prisoner at Benares, or to imprison him in the fortress ofChunar, the infernal place to which he sends the persons whom he has amind to extort money from. 

Your Lordships will be curious to know how this debt of Durbege Singstood at the time of his imprisonment. I will state the matter to yourLordships briefly, and in plain language, referring you for theparticulars of the account to the papers which are in your Minutes. Itappears 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 theannual tribute, was due. In part of this kist, Durbege Sing paid twolacs (20, 000_l. _). Of the remaining six lacs (60, 000_l. _), theoutstanding debts in the country due to the revenue, but not collectedby the Naib, amounted to four lacs (40, 000_l. _). Thus far the accountis not controverted by the accusing party. But Mr. Markham asserts thathe _shall_ be able to prove that the Naib had also actually received theother two lacs (20, 000_l. _), and consequently was an actual defaulter tothat amount, and had, upon the whole, suffered the annual tribute tofall six lacs in arrear. The Naib denies the receipt of the two lacsjust mentioned, and challenges inquiry; but no inquiries appear to havebeen made, and to this hour Mr. Markham has produced no proof of thefact. With respect to the arrear of the tribute money which appeared onthe balance of the whole account, the Naib defended himself by allegingthe distresses of the country, the diminution of his authority, and thewant of support from the supreme government in the collection of therevenues; and he asserts that he has assets sufficient, if time andpower be allowed him for collecting them, to discharge the whole balancedue to the Company. The immediate payment of the whole balance wasdemanded, and Durbege Sing, unable to comply with the demand, was sentto prison. Thus stood the business, when Mr. Markham, soon after he hadsent the Naib to prison, quitted the Residency. He was succeeded by Mr. Benn, who acted exactly upon the same principle. He declares that thesix lacs demanded were not demanded upon the principle of its havingbeen actually collected by him, but upon the principle of his havingagreed to pay it. "We have, " say Mr. Hastings's agents to the Naib, "wehave a Jew's bond. If it is in your bond, we will have it, or we willhave a pound of your flesh: whether you have received it or not is nobusiness of ours. " About this time some hopes were entertained by theResident that the Naib's personal exertions in collecting the arrears ofthe tribute might be useful. These hopes procured him a short liberationfrom his confinement. He was let out of prison, and appears to have madeanother payment of half a lac of rupees. Still the terms of the bondwere insisted on, although Mr. Hastings had allowed that these termswere extravagant, and only one lac and a half of the money which hadbeen actually received remained unpaid. One would think that commoncharity, that common decency, that common regard to the decorum of lifewould, under such circumstances, have hindered Mr. Hastings fromimprisoning him again. But, my Lords, he was imprisoned again; hecontinued in prison till Mr. Hastings quitted the country; and there hesoon after died, --a victim to the enormous oppression which has beendetailed to your Lordships. 

It appears that in the mean time the Residents had been using othermeans for recovering the balance due to the Company. The family of theRajah had not been paid one shilling of the 60, 000_l. _, allowed fortheir maintenance. They were obliged to mortgage their own hereditaryestates for their support, while the Residents confiscated all theproperty of Durbege Sing. Of the money thus obtained what account hasbeen given? None, my Lords, none. It must therefore have been disposedof in some abominably corrupt way or other, while this miserable victimof Mr. Hastings was left to perish in a prison, after he had beenelevated 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; theyexamined all his accounts, every paper that he had, in and out ofprison. They searched and scrutinized everything. They had every pennyof his fortune, and I believe, though I cannot with certainty know, thatthe man died insolvent; and it was not pretended that he had everapplied to his own use any part of the Company's money. 

Thus Durbege Sing is gone; this tragedy is finished; a second Rajah ofBenares has been destroyed. I do not speak of that miserable puppet whowas said by Mr. Hastings to be in a state of childhood when arrived atmanhood, but of the person who represented the dignity of the family. Heis gone; he is swept away; and in his name, in the name of this devotedDurbege Sing, in the name of his afflicted family, in the name of thepeople of the country thus oppressed by an usurped authority, in thename of all these, respecting whom justice has been thus outraged, wecall upon your Lordships for justice. 

We are now at the commencement of a new order of things. Mr. Markham hadbeen authorized to appoint whoever he pleased as Naib, with theexception of Ussaun Sing. He accordingly exercises this power, andchooses a person called Jagher Deo Seo. From the time of the confinementof 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 hastold you, at your bar, that they were in his hands, --that he was theperson who not only named this man, but that he had the sole managementof the revenues; and he was, of course, answerable for them all thattime. The nominal title of Zemindar was still left to the miserablepageant who held it; but even the very name soon fell entirely out ofuse. It is in evidence before your Lordships that his name is not evenso much as mentioned in the proceedings of the government; and that theperson who really governed was not the ostensible Jagher Deo Seo, butMr. Markham. The government, therefore, was taken completely andentirely out of the hands of the person who had a legal right toadminister it, --out of the hands of his guardians, --out of the hands ofhis 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 beenintrusted with it. From all such persons, I say, it was taken: andwhere, my Lords, was it deposited? Why, in the hands of a man of whom weknow nothing, and of whom we never heard anything, before we heard thatMr. Markham, of his own usurped authority, authorized by the usurpedauthority of Mr. Hastings, without the least communication with theCouncil, had put him in possession of that country. 

Mr. Markham himself, as I have just said, administered the revenuesalone, without the smallest authority for so doing, without the leastknowledge of the Council, till Jagher Deo Seo was appointed Naib. Did hethen give up his authority? No such thing. All the measures of JagherDeo Seo's government were taken with the concurrence and jointmanagement of Mr. Markham. He conducted the whole; the settlements weremade, the leases and agreements with farmers all regulated by him. Ineed not tell you, I believe, that Jagher Deo Seo was not a person ofvery much authority in the case: your Lordships would laugh at me, if Isaid he was. The revenue arrangements were, I firmly believe, regulatedand made by Mr. Markham. But whether they were or were not, it comes tothe same thing. If they were improperly made and improperly conducted, Mr. Hastings is responsible for the whole of the mismanagement; for hegave the entire control to a person who had little experience, who wasyoung in the world (and this is the excuse I wish to make for agentleman of that age). He appointed him, and gave him at large adiscretionary authority to name whom he pleased to be the ostensibleNaib; but we know that he took the principal part himself in all hissettlements 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 thecountry. Mr. Markham then desires leave from Mr. Hastings to go down toCalcutta. 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 gentlemenhad just the same power delegated to them that Mr. Markhampossessed, --not one jot less, that I know of; and they were thereforeresponsible, and ought to have been called to an account by Mr. Hastingsfor every part of their proceedings. I will not give you my own accountof 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 beunder their government. This course will save your Lordships time andtrouble; for it will nearly supersede all observations of mine upon thesubject. I hold in my hand Mr. Hastings's representation of the effectsproduced by a government which was conceived by himself, carried intoeffect by himself, and illegally invested by him with illegal powers, without any security or responsibility of any kind. Hear, I say, what anaccount Mr. Hastings gave, when he afterwards went up to Benares uponanother wicked project, and think what ought to have been his feelingsas he looked upon the ruin he had occasioned. Think of the condition inwhich he saw Benares the first day he entered it. He then saw itbeautiful, ornamented, rich, --an object that envy would have shed tearsover for its prosperity, that humanity would have beheld with eyesglistening with joy for the comfort and happiness which were thereenjoyed by man: a country flourishing in cultivation to such a degreethat the soldiers were obliged to march in single files through thefields of corn, to avoid damaging them; a country in which Mr. Stableshas stated that the villages were thick beyond all expression; a countrywhere the people pressed round their sovereign, as Mr. Stables also toldyou, with joy, triumph, and satisfaction. Such was the country; and insuch a state and under such a master was it, when he first saw it. Seewhat it now is under Warren Hastings; see what it is under the Britishgovernment; and then judge whether the Commons are or are not right inpressing the subject upon your Lordships for your decision, and lettingyou and all this great auditory know what sort of a criminal you havebefore you, who has had the impudence to represent to your Lordships atyour bar that Benares is in a flourishing condition, in defiance of theevidence which we have under his own hands, and who, in all the falsepapers that have been circulated to debauch the public opinion, hasstated that we, the Commons, have given a false representation as tothe 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 ofoffice, not from witnesses at your bar, but from the prisonerhimself--the state of the country of Benares, from the time that Mr. Hastings and his delegated Residents had taken the management of it. MyLords, it is a proof, beyond all other proof, of the melancholy state ofthe country, in which, by attempting to exercise usurped and arbitrarypower, all power and all authority become extinguished, complete anarchytakes place, and nothing of government appears but the means of robbingand ravaging, with an utter indisposition to take one step for theprotection of the people. 

Think, my Lords, what a triumphal progress it was for a Britishgovernor, from one extremity of the province to the other, (for so hehas stated it, ) to be pursued by the cries of an oppressed and ruinedpeople, where they dared to appear before him, --and when they did notdare to appear, flying from every place, even the very magistrates beingthe first to fly! Think, my Lords, that, when these unhappy people sawthe appearance of a British soldier, they fled as from a pestilence; andthen think, that these were the people who labored in the manner whichyou have just heard, who dug their own wells, whose country would notproduce anything but from the indefatigable industry of its inhabitants;and that such a meritorious, such an industrious people, should besubjected to such a cursed anarchy under pretence of revenue, to such acursed tyranny under the pretence of government!

"But Jagher Deo Seo was unfit for his office. "--"How dared you toappoint a man unfit for his office?"--"Oh, it signified little, withouttheir having a constitution. "--"Why did you destroy the officialconstitution that existed before? How dared you to destroy thoseestablishments which enabled the people to dig wells and to cultivatethe country like a garden, and then to leave the whole in the hands ofyour arbitrary and wicked Residents and their instruments, chosenwithout the least idea of government and without the least idea ofprotection?"

God has sometimes converted wickedness into madness; and it is to thecredit of human reason, that men who are not in some degree mad arenever capable of being in the highest degree wicked. The human facultiesand reason are in such cases deranged; and therefore this man has beendragged by the just vengeance of Providence to make his own madness thediscoverer of his own wicked, perfidious, and cursed machinations inthat devoted country. 

Think, my Lords, of what he says respecting the military. He says thereis no restraining them, --that they pillage the country wherever they go. But had not Mr. Hastings himself just before encouraged the military topillage the country? Did he not make the people's resistance, when thesoldiers attempted to pillage them, one of the crimes of Cheyt Sing? Andwho would dare to obstruct the military in their abominable ravages, when they knew that one of the articles of Cheyt Sing's impeachment washis having suffered the people of the country, when plundered by thesewicked soldiers, to return injury for injury and blow for blow? Whenthey saw, I say, that these were the things for which Cheyt Sing wassacrificed, there was manifestly nothing left for them butflight. --What! fly from a Governor-General? You would expect he wasbearing to the country, upon his balmy and healing wings, the cure ofall 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 bethe destroyer of their sovereign, the destroyer of the persons whom hehad appointed to govern under him; they knew that neither governor, sub-governor, nor subject could enjoy a moment's security while hepossessed supreme power. This was the state of the country; and this theCommons of England call upon your Lordships to avenge. 

Let us now see what is next done by the prisoner at your bar. He issatisfied with simply removing from his office Jagher Deo Seo, who isaccused by him of all these corruptions and oppressions. The other poor, unfortunate man, who was not even accused of malversations in such adegree, and against whom not one of the accusations of oppression wasregularly proved, but who had, in Mr. Hastings's eye, the oneunpardonable fault of not having been made richer by his crimes, wastwice imprisoned, and finally perished in prison. But we have neverheard 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 proceedingwith Gunga Govind Sing, and to contrast his conduct towards these twopeculators with his proceeding towards Durbege Sing. Such a comparisonwill let your Lordships into the secret of one of the prisoner's motivesof conduct upon such occasions. When you will find a man pillaging anddesolating a country, in the manner Jagher Deo Seo is described by Mr. Hastings to have done, but who takes care to secure to himself thespoil, 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 coadjutorof Mr. Hastings in peculation, ) out of 80, 000_l. _ which he had receivedon 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 andcruelty, he was elevated in Mr. Hastings's grace and favor, and nevercalled upon for the restoration of a penny. Observe, my Lords, thedifference 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, andis poor and insolvent. 

We have shown your Lordships the effects of Mr. Hastings's governmentupon the country and its inhabitants; and although I have beforesuggested to you some of its effects upon the army of the Company, Iwill now call your attention to a few other observations on thatsubject. Your Lordships will, in the first place, be pleased to attendto the character which he gives of this army. You have heard what hetells you of the state of the country in which it was stationed, and ofthe terror which it struck into the inhabitants. The appearance of anEnglish soldier was enough to strike the country people with affrightand dismay: they everywhere, he tells you, fled before them. And yetthey are the officers of this very army who are brought here aswitnesses to express the general satisfaction of the people of India. Tobe sure, a man who never calls Englishmen to an account for any robberyor injury whatever, who acquits them, upon their good intentions, without any inquiry, will in return for this indemnity have their goodwords. We are not surprised to find them coming with emulation to yourbar to declare him possessed of all virtues, and that nobody has or canhave a right to complain of him. But we, my Lords, protest against theseindemnities; we protest against their good words; we protest againsttheir testimonials; and we insist upon your Lordships trying him, notupon what this or that officer says of his good conduct, but upon theproved result of the actions tried before you. Without ascribing, perhaps, much guilt to men who must naturally wish to favor the personwho covers their excesses, who suffers their fortunes to be made, youwill know what value to set upon their testimony. The Commons look onthose testimonies with the greatest slight, and they consider as nothingall evidence given by persons who are interested in the verycause, --persons who derive their fortunes from the ruin of the verypeople of the country, and who have divided the spoils with the man whomwe 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 theCompany, except some few, will give him the same good word, every one ofthem; because, my Lords, they have made their fortunes under him, andtheir conduct has not been inquired into. 

But to return to the observations we were making upon the ruinouseffects in general of the successive governments which had beenestablished at Benares by the prisoner at your bar. These effects, hewould have you believe, arose from the want of a constitution. Why, Iagain ask, did he destroy the constitution which he found establishedthere, 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. Thenative inhabitants, deprived of their ancient government, were so farfrom looking up to their new masters for protection, that, the momentthey saw the face of a soldier or of a British person in authority, theyfled in dismay, and thought it more eligible to abandon their houses torobbery than to remain exposed to the tyranny of a British governor. Isthis what they call British dominion? Will you sanction by your judicialauthority transactions done in direct defiance of your legislativeauthority? Are they so injuriously mad as to suppose your Lordships canbe corrupted to betray in your judicial capacity (the most sacred of thetwo) what you have ordained in your legislative character?

My Lords, I am next to remind you what this man has had the insolenceand audacity to state at your bar. "In fact, " says he, "I can adducevery many gentlemen now in London to confirm my assertions, that thecountries of Benares and Gazipore were never within the memory ofEnglishmen so well protected, so peaceably governed, or moreindustriously cultivated than at the present moment. "

Your Lordships know that this report of Mr. Hastings which has been readwas made in the year 1784. Your Lordships know that no step was taken, while Mr. Hastings remained in India, for the regulation and managementof the country. If there was, let it be shown. There was no constitutionframed, nor any other means taken for the settlement of the country, except the appointment of Ajeet Sing in the room of Durbege Sing, toreign like him, and like him to be turned out. Mr. Hastings left Indiain February, 1785; he arrived here, as I believe, in June or Julyfollowing. Our proceedings against him commenced in the sessions of1786; and this defence was given, I believe, in the year 1787. Yet atthat time, when he could hardly have received any account from India, hewas ready, he says, to produce the evidence (and no doubt might havedone so) of many gentlemen whose depositions would have directlycontradicted what he had himself deposed of the state in which he, soshort a time before, had left the country. Your Lordships cannot supposethat it could have recovered its prosperity within that time. We knowyou may destroy that in a day which will take up years to build; we knowa tyrant can in a moment ruin and oppress: but you cannot restore thedead to life; you cannot in a moment restore fields to cultivation; youcannot, as you please, make the people in a moment restore old or dignew wells: and yet Mr. Hastings has dared to say to the Commons that hewould produce persons to refute the account which we had fresh fromhimself. We will, however, undertake to show you that the directcontrary 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 ofthe prisoner's assertions. You will find that Mr. Hastings himself hadbeen obliged to give orders for the change of almost every one of theregulations he had made. Your Lordships may there see the madness andfolly of tyranny attempting to regulate trade. In the printed Minutes, page 2830, your Lordships will see how completely Mr. Hastings hadruined the trade of the country. You will find, that, wherever hepretended to redress the grievances which he had occasioned, he did nottake care to have any one part of his pretended redress executed. Whenyou consider the anarchy in which he states the country through which hepassed to have been, you may easily conceive that regulations for theprotection of trade, without the means of enforcing them, must benugatory. 

Mr. Barlow was sent, in the years 1786 and 1787, to examine into thestate of the country. He has stated the effect of all those regulations, which Mr. Hastings has had the assurance to represent here as prodigiesof 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 toit, ) at that time, I do not know whether it was not on the very same daythat we brought our charge to your bar, Mr. Duncan was sent by LordCornwallis to examine into the state of that province. Now, my Lords, you have Mr. Duncan's report before you, and you will judge whether ornot, 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 falsehoodof his representation, that all which he had done had operated on theminds of the inhabitants very greatly in favor of British integrity andgood government. Mr. Duncan's report will not only enable you to decideupon what he has said himself, it will likewise enable you to judge ofthe credit which is due to the gentlemen now in London whom he canproduce to confirm his assertions, that the country of Benares andGazipore were never, within the memory of Englishmen, so well protectedand cultivated as at the present moment. 

Instead, therefore, of a speech from me, you shall hear what the countrysays itself, by the report of the last commissioner who was sent toexamine it by Lord Cornwallis. The perfect credibility of his testimonyMr. Hastings has established out of Lord Cornwallis's mouth, who, beingasked the character of Mr. Jonathan Duncan, has declared that there isnothing he can report of the state of the country to which you ought notto give credit. Your Lordships will now see how deep the wounds arewhich tyranny and arbitrary power must make in a country where theirexistence is suffered; and you will be pleased to observe that thisstatement 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 Khân, 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 theexpulsion 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 ofall the testimonies which he has called, and of all the othertestimonies which he would have called, that his own account of thematter is confirmed against his own pretended evidence; you find his ownwritten account confirmed in a manner not to be doubted: and the onlydifference between his account and this is, that the people did not flyfrom 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 fromthe beneficent government of Lord Cornwallis with which they had beenentirely filled at the appearance of the prisoner at your bar. From himthey fled in dismay. They fled from his very presence, as from aconsuming pestilence, as from something far worse than drought andfamine; 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 anddestroyed; and you have seen, by the date of these measures, that theyhave happened within a few years, namely, since the expulsion of RajahCheyt Sing. There begins the era of calamity. Ask yourselves, then, whether you will or can countenance the acts which led directly andnecessarily to such consequences. Your Lordships will mark what it is tooppress and expel a cherished individual from his government, andfinally to subvert it. Nothing stands after him; down go all order andauthority with him; ruin and desolation fall upon the country; thefields are uncultivated, the wells are dried up. The people, says Mr. Duncan, promised, indeed, some time or other, under some othergovernment, to do something. They will again cultivate the lands, whenthey 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 hisproceedings, when they had read the account given by Mr. Duncan of anuncultivated country as far as the eye could reach, would not have shownthemselves unworthy to represent not only the Commons of Great Britain, but the meanest village in it, if they had not brought this greatcriminal before you, and called upon your Lordships to punish him. Thisruined country, its desolate fields and its undone inhabitants, all callaloud for British justice, all call for vengeance upon the head of thisexecrable criminal. 

Oh! but we ought to be tender towards his personal character, --extremelycautious in our speech; we ought not to let indignation loose. --MyLords, we do let our indignation loose; we cannot bear with patiencethis affliction of mankind. We will neither abate our energy, relax inour feelings, nor in the expressions which those feelings dictate. Nothing but corruption like his own could enable any man to see such ascene of desolation and ruin unmoved. We feel pity for the works of Godand man; we feel horror for the debasement of human nature; and feelingthus, we give a loose to our indignation, and call upon your Lordshipsfor justice. 

Strange as it may appear to your Lordships, there remains to be statedan aggravation of his crimes, and of his victims' misery. Would youconsider it possible, my Lords, that there could be an aggravation ofsuch a case as you have heard? Would you think it possible for a peopleto suffer more than the inhabitants of Benares have suffered, from thenoble possessor of the splendid mansion down to the miserable tenants ofthe cottage and the hut? Yes, there is a state of misery, a state ofdegradation, far below all that you have yet heard. It is, my Lords, that these miserable people should come to your Lordships' bar, anddeclare that they have never felt one of those grievances of which theycomplain; that not one of those petitions with which they pursued Mr. Hastings had a word of truth in it; that they felt nothing under hisgovernment but ease, tranquillity, joy, and happiness; that every dayduring his government was a festival, and every night an illuminationand rejoicing. The addresses which contain these expressions ofsatisfaction have been produced at your bar, and have been read to yourLordships. You must have heard with disgust, at least, these flowers ofOriental rhetoric, penned at ease by dirty hireling moonshees atCalcutta, who make these people put their seals, not to declarations oftheir ruin, but to expressions of their satisfaction. You have heardwhat he himself says of the country; you have heard what Mr. Duncan saysof it; you have heard the cries of the country itself calling forjustice upon him: and now, my Lords, hear what he has made these peoplesay. "We have heard that the gentlemen in England are displeased withMr. Hastings, on suspicion that he oppressed us, the inhabitants ofthis place, took our money by deceit and force, and ruined the country. "They then declare solemnly before God, according to their differentreligions, that Mr. Hastings "distributed protection and security toreligion, and kindness and peace to all. He is free, " say they, "fromthe charge of embezzlement and fraud, and his heart is void ofcovetousness and avidity. During the period of his government no oneever experienced from him other than protection and justice, neverhaving felt hardships from him; nor did the poor ever know the weight ofan oppressive hand from him. Our characters and reputation have beenalways guarded in quiet from attack, by the vigilance of his prudenceand foresight, and by the terror of his justice. "

Upon my word, my Lords, the paragraphs are delightful. Observe, in thistranslation from the Persian there is all the fluency of an Englishparagraph well preserved. All I can say is, that these people of Benaresfeel their joy, comfort, and satisfaction in swearing to the falsenessof Mr. Hastings's representation against himself. In spite of his owntestimony, they say, "He secured happiness and joy to us; hereëstablished the foundation of justice; and we at all times, during hisgovernment, lived in comfort and passed our days in peace. " The shame ofEngland 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 theinhabitants fled before his face, the addresses of these miserablepeople. He dares to impose upon your eyesight, upon your common sense, upon the plain faculties of mankind. He dares, in contradiction to allhis own assertions, to make these people come forward and swear thatthey have enjoyed nothing but complete satisfaction and pleasure duringthe whole time of his government. 

My Lords, I have done with this business, for I have now reached theclimax of degradation and suffering, after moving step by step throughthe several stages of tyranny and oppression. I have done with it, andhave only to ask, In what country do we live, where such a scene can byany possibility be offered to the public eye?

Let us here, my Lords, make a pause. --You have seen what Benares wasunder its native government. You have seen the condition in which it wasleft by Cheyt Sing, and you have seen the state in which Mr. Hastingsleft it. The rankling wounds which he has inflicted upon the country, and the degradation to which the inhabitants have been subjected, havebeen shown to your Lordships. You have now to consider whether or notyou will fortify with your sanction any of the detestable principlesupon which the prisoner justifies his enormities. 

My Lords, we shall next come to another dependent province, when I shallillustrate to your Lordships still further the effects of Mr. Hastings'sprinciples. I allude to the province of Oude, --a country which, beforeour acquaintance with it, was in the same happy and flourishingcondition with Benares, and which dates its period of decline and miseryfrom the time of our intermeddling with it. The Nabob of Oude wasreduced, as Cheyt Sing was, to be a dependant on the Company, and to bea greater dependant than Cheyt Sing, because it was reserved in CheytSing's agreement that we should not interfere in his government. Weinterfered in every part of the Nabob's government; we reduced hisauthority to nothing; we introduced a perfect scene of anarchy andconfusion into the country, where there was no authority but to rob anddestroy. 

I have not strength at present to proceed; but I hope I shall soon beenabled to do so. Your Lordships cannot, I am sure, calculate from yourown youth and strength; for I have done the best I can, and find myselfincapable 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 fromthis place, my want of strength obliged me to conclude where thepatience of a people and the prosperity of a country subjected by solemntreaties to British government had concluded. We have left behind us theinhabitants of Benares, after having seen them driven into rebellion bytyranny and oppression, and their country desolated by our misrule. YourLordships, I am sure, have had the map of India before you, and knowthat the country so destroyed and so desolated was about one fifth ofthe size of England and Wales in geographical extent, and equal inpopulation to about a fourth. Upon this scale you will judge of themischief which has been done. 

My Lords, we are now come to another devoted province: we march fromdesolation to desolation; because we follow the steps of WarrenHastings, Esquire, Governor-General of Bengal. You will here find therange of his atrocities widely extended; but before I enter into adetail of them, I have one reflection to make, which I beseech yourLordships to bear in mind throughout the whole of this deliberation. Itis this: you ought never to conclude that a man must necessarily beinnoxious because he is in other respects insignificant. You will seethat a man bred in obscure, vulgar, and ignoble occupations, and trainedin sordid, base, and mercenary habits, is not incapable of doingextensive mischief, because he is little, and because his vices are of amean nature. My Lords, we have shown to you already, and we shalldemonstrate to you more clearly in future, that such minds placed inauthority can do more mischief to a country, can treat all ranks anddistinctions with more pride, insolence, and arrogance, than those whohave been born under canopies of state and swaddled in purple: you willsee that they can waste a country more effectually than the proudest andmost 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 saidto have erected a pyramid of ninety thousand human heads. Now look back, my Lords, to Benares; consider the extent of country laid waste anddesolated, and its immense population; and then see whether famine maynot destroy as well as the sword, and whether this man is not as wellentitled to erect his pyramid of ninety thousand heads as any terrifictyrant of the East. We follow him now to another theatre, theterritories of the Nabob of Oude. 

My Lords, Oude, (together with the additions made to it by SujahDowlah, ) in point of geographical extent, is about the size of England. Sujah Dowlah, who possessed this country as Nabob, was a prince of ahaughty character, --ferocious in a high degree towards his enemies, andtowards all those who resisted his will. He was magnificent in hisexpenses, yet economical with regard to his resources, --maintaining hiscourt in a pomp and splendor which is perhaps unknown to the sovereignsof Europe. At the same time he was such an economist, that from aninconsiderable revenue, at the beginning of his reign, he was annuallyenabled to make great savings. He thus preserved, towards the end of it, his people in peace, tranquillity, and order; and though he was anarbitrary prince, he never strained his revenue to such a degree as tolose their affections while he filled his exchequer. Such appears tohave been the true character of Sujah Dowlah: your Lordships have heardwhat is the character which the prisoner at your bar and his counselhave thought proper to give you of him. 

Surely, my Lords, the situation of the great, as well as of the lowerranks in that country, must be a subject of melancholy reflection toevery man. Your Lordships' compassion will, I presume, lead you to feelfor the lowest; and I hope that your sympathetic dignity will make youconsider in what manner the princes of this country are treated. Theyhave not only been treated at your Lordships' bar with indignity by theprisoner, but his counsel do not leave their ancestors to rest quietlyin their graves. They have slandered their families, and have gone intoscandalous history that has no foundation in facts whatever. 

Your Lordships have seen how he attempted to slander the ancestors ofCheyt Sing, to deny that they were zemindars; and yet he must have knownfrom printed books, taken from the Company's records, the utter falsityof his declaration. You need only look into Mr. Verelst's Appendix, andthere you will see that that country has always been called theZemindary of Bulwant Sing. You will find him always called the Zemindar;it was the known, acknowledged name, till this gentleman thought properat the bar of the House of Commons to deny that he was a zemindar, andto assert that he was only an aumil. He slanders the pedigree of thisman as mean and base, yet he was not ashamed to take from himtwenty-three thousand pounds. In like manner he takes from Asoph ulDowlah a hundred thousand pounds, which he would have appropriated tohimself, and then directs his counsel to rake up the slander of Dow'sHistory, a book of no authority, a book that no man values in anyrespect or degree. In this book they find that romantic, absurd, andridiculous story upon which an honorable fellow Manager of mine, who ismuch more capable than I am of doing justice to the subject, hascommented with his usual ability: I allude to that story of spitting onthe beard, --the mutual compact to poison one another. That Arabian tale, fit only to form a ridiculous tragedy, has been gravely mentioned toyour Lordships for the purpose of slandering the pedigree of this Vizierof Oude, and making him vile in your Lordships' eyes. My honorablefriend has exposed to you the absurdity of these stories, but he has notshown you the malice of their propagators. The prisoner and his counselhave referred to Dow's History, who calls this Nabob "the more infamousson of an infamous Persian peddler. " They wish that your Lordshipsshould consider him as a person vilely born, ignominiously educated, andpractising a mean trade, in order that, when it shall be proved that heand his family were treated with every kind of indignity and contempt bythe 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 withoppressing his offspring, but goes back to his ancestors, tears them outof their graves, and vilifies them with slanderous aspersions. My Lords, the ancestor of Sujah Dowlah was a great prince, --certainly asubordinate prince, because he was a servant of the Great Mogul, who waswell called King of Kings, for he had in his service persons of highdegree. He was born in Persia; but was not, as is falsely said, _themore infamous son of an infamous Persian peddler_. Your Lordships arenot unacquainted with the state and history of India; you therefore knowthat Persia has been the nursery of all the Mahometan nobility of India:almost everything in that country which is not of Gentoo origin is ofPersian; so much so, that the Persian language is the language of thecourt, and of every office from the highest to the lowest. Among thesenoble 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. Thisdistinguished family, on no better authority than that of the historianDow, has been slandered by the prisoner at your bar, in order to destroythe character of those whom he had already robbed of their substance. Your Lordships will have observed with disgust how the Dows and theHastings, and the whole of that tribe, treat their superiors, --in whatinsolent language they speak of them, and with what pride and indignitythey trample upon the first names and the first characters in thatdevoted country. 

But supposing it perfectly true that this man was "the more infamous sonof an infamous Persian peddler, " he had risen to be the secondarysovereign of that country. He had a revenue of three millions sixhundred thousand pounds sterling: a vast and immense revenue; equal, perhaps, to the clear revenue of the King of England. He maintained anarmy of one hundred and twenty thousand men. He had a splendid court;and his country was prosperous and happy. Such was the situation ofSujah Dowlah, the Nabob of Oude, and such the condition of Oude underhis government. With his pedigree, I believe, your Lordships will thinkwe have nothing to do in the cause now before us. It has been pressedupon us; and this marks the indecency, the rancor, the insolence, thepride and tyranny which the Dows and the Hastings, and the people ofthat class and character, are in the habit of exercising over the greatin India. 

My Lords, I shall be saved a great deal of trouble in proving to you theflourishing state of Oude, because the prisoner admits it as largely asI could wish to state it; and what is more, he admits, too, the truth ofour statement of the condition to which it is now reduced, --but I shallnot let him off so easily upon this point. He admits, too, that it wasleft in this reduced and ruined state at the close of hisadministration. In his Defence he attributes the whole mischiefgenerally to a faulty system of government. My Lords, systems never makemankind happy or unhappy, any further than as they give occasions forwicked men to exercise their own abominable talents, subservient totheir own more abominable dispositions. "The system, " says Mr. Hastings, "was bad; but I was not the maker of it. " Your Lordships have seen himapply this mode of reasoning to Benares, and you will now see that heapplies it to Oude. "I came, " says he, "into a bad system; that systemwas not of my making, but I was obliged to act according to the spiritof it. "

Now every honest man would say, --"I came to a bad system: I had everyfacility of abusing my power, I had every temptation to peculate, I hadevery incitement to oppress, I had every means of concealment, by thedefects of the system; but I corrected that evil system by the goodnessof my administration, by the prudence, the energy, the virtue of myconduct. " This is what all the rest of the world would say: but whatsays Mr. Hastings? "A bad system was made to my hands; I had nothing todo in making it. I was altogether an involuntary instrument, and obligedto execute every evil which that system contained. " This is the line ofconduct your Lordships are called to decide upon. And I must here againremind you that we are at an issue of law. Mr. Hastings has avowed acertain set of principles upon which he acts; and your Lordships aretherefore to judge whether his acts are justifiable because he found anevil system to act upon, or whether he and all governors upon earth havenot a general good system upon which they ought to act. 

The prisoner tells you, my Lords, that it was in consequence of thisevil system, that the Nabob, from being a powerful prince, becamereduced to a wretched dependant on the Company, and subject to all theevils of that degraded state, --subject to extortion, to indignity, tooppression. All these your Lordships are called upon to sanction; andbecause they may be connected with an existing system, you are todeclare them to be an allowable part of a code for the government ofBritish India. 

In the year 1775, that powerful, magnificent, and illustrious prince, Sujah Dowlah, died in possession of the country of Oude. He had longgoverned a happy and contented people, and, if we except the portion oftyranny which we admit he really did exercise towards some fewindividuals who resisted his power, he was a wise and beneficentgovernor. This prince died in the midst of his power and fortune, leaving somewhere about fourscore children. Your Lordships know that theprinces of the East have a great number of wives; and we know that thesewomen, though reputed of a secondary rank, are yet of a very highdegree, and honorably maintained according to the customs of the East. Sujah Dowlah had but one lawful wife: he had by her but one lawfulchild, Asoph ul Dowlah. He had about twenty-one male children, theeldest of whom was a person whom you have heard of very often in theseproceedings, called Saadut Ali. Asoph ul Dowlah, being the solelegitimate son, had all the pretensions to succeed his father, asSubahdar of Oude, which could belong to any person under the Mogulgovernment. 

Your Lordships will distinguish between a Zemindar, who is a perpetuallandholder, the hereditary proprietor of an estate, and a Subahdar, whoderives from his master's will and pleasure all his employments, andwho, instead of having the jaghiredars subject to his supposed arbitrarywill, is himself a subject, and must have his sovereign's patent forhis place. Therefore, strictly and properly speaking, there is nosuccession in the office of Subahdar. At this time the Company, whoalone could obtain the _sunnuds_ [_sunnud?_], or patent, from the GreatMogul, upon account of the power they possessed in India, thought, andthought rightly, that with an officer who had no hereditary power therecould be no hereditary engagements, --and that in their treaty with Asophul Dowlah, for whom they had procured the sunnud from the Great Mogul, they were at liberty to propose their own terms, which, if honorable andmutually advantageous to the new Subahdar and to the Company, they had aright to insist upon. A treaty was therefore concluded between theCompany and Asoph ul Dowlah, in which the latter stipulated to pay afixed subsidy for the maintenance of a certain number of troops, bywhich the Company's finances were greatly relieved and their militarystrength greatly increased. 

This treaty did not contain one word which could justify anyinterference in the Nabob's government. That evil system, as Mr. Hastings calls it, is not even mentioned or alluded to; nor is there, Iagain say, one word which authorized Warren Hastings, or any otherperson whatever, to interfere in the interior affairs of his country. Hewas legally constituted Viceroy of Oude; his dignity of Vizier of theEmpire, with all the power which that office gave him, derived from andheld under the Mogul government, he legally possessed; and this evilsystem, which Mr. Hastings says led him to commit the enormities ofwhich you shall hear by-and-by, was neither more nor less than what Ihave now stated. 

But, my Lords, the prisoner thinks, that, when, under any pretence, anysort of means could be furnished of interfering in the government of thecountry, he has a right to avail himself of them, to use them at hispleasure, 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 thiscurious distinction in proof of it. It was, he says, an optionalvassalage: for, if he chose to get rid of our troops, he might do so andbe 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 personwho 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 avassal. I shall not dispute whether vassalage is optional or by force, or in what way Mr. Hastings considered this prince as a vassal of theCompany. Let it be as he pleased. I only think it necessary that yourLordships should truly know the actual state of that country, and theground upon which Mr. Hastings stood. Your Lordships will find it afairy land, in which there is a perpetual masquerade, where no one thingappears as it really is, --where the person who seems to have theauthority is a slave, while the person who seems to be the slave has theauthority. In that ambiguous government everything favors fraud, everything favors peculation, everything favors violence, everythingfavors concealment. You will therefore permit me to show to you whatwere the principles upon which Mr. Hastings appears, according to theevidence 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 appliedthose 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 previousexplanation. " He then proceeds, --"With his death [Sujah Dowlah's] a newpolitical system commenced, and Mr. Bristow was constituted theinstrument of its formation, and the trustee for the management of it. The Nabob Asoph ul Dowlah was deprived of a large part of hisinheritance, --I mean the province of Benares, attached by a very feebleand precarious tenure to our dominions; the army fixed to a permanentstation in a remote line of his frontier, with an augmented andperpetual subsidy; a new army, amphibiously composed of troops in hisservice and pay, commanded by English officers of our own nomination, for the defence of his new conquests; and his own natural troopsannihilated, or alienated by the insufficiency of his revenue for allhis disbursements, and the prior claims of those which our authority orinfluence commanded: in a word, he became a vassal of the government;but he still possessed an ostensible sovereignty. His titular rank ofVizier of the Empire rendered him a conspicuous object of view to allthe states and chiefs of India; and on the moderation and justice withwhich the British government in Bengal exercised its influence over himmany points most essential to its political strength and to the honor ofthe British name depended. "

Your Lordships see that the system which is supposed to have reduced himto vassalage did not make, as he contends, a violent exercise of ourpower necessary or proper; but possessing, as the Nabob did, that highnominal dignity, and being in that state of vassalage, as Mr. Hastingsthought proper to term it, though there is no vassalage mentioned inthe treaty, --being, I say, in that situation of honor, credit, andcharacter, sovereign of a country as large as England, yielding animmense revenue, and flourishing in trade, certainly our honor dependedupon 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 andundeviating observance of every principle of public faith, the Britishdominion might have by this time acquired the means of its extension, through a virtual submission to its authority, to every region ofHindostan 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 verymuch fear that the limited formation of such equal alliances as might beuseful to our present condition, and conduce to its improvement, isbecome liable to almost insurmountable difficulties: every power inIndia must wish for the support of ours, but they all dread theconnection. The subjection of Bengal, and the deprivation of the familyof Jaffier Ali Khân, though an effect of inevitable necessity, thepresent usurpations of the rights of the Nabob Wallau Jau in theCarnatic, and the licentious violations of the treaty existing betweenthe Company and the Nabob Nizam ul Dowlah, though checked by theremedial interposition of this government, stand as terrible precedentsagainst us; the effects of our connection with the Nabob Asoph ul Dowlahhad a rapid tendency to the same consequences, and it has been myinvariable study to prevent it. "

Your Lordships will remember that the counsel at the bar have said thatthey undertook the defence of Warren Hastings, not in order to defendhim, but to rescue the British character from the imputations which havebeen laid upon it by the Commons of Great Britain. They have said thatthe Commons of Great Britain have slandered their country, and havemisrepresented its character; while, on the contrary, the servants ofthe Company have sustained and maintained the dignity of the Englishcharacter, have kept its public faith inviolate, preserved the peoplefrom oppression, reconciled every government to it in India, and havemade every person under it prosperous and happy. 

My Lords, you see what this man says himself, when endeavoring to provehis own innocence. Instead of proving it by the facts alleged by hiscounsel, he declares that by preserving good faith you might haveconquered India, the most glorious conquest that was ever made in theworld; that all the people want our assistance, but dread ourconnection. Why? Because our whole conduct has been one perpetual tissueof perfidy and breach of faith with every person who has been inalliance with us, in any mode whatever. Here is the man himself who saysit. Can we bear that this man should now stand up in this place as theassertor of the honor of the British nation against us, who charge thisdishonor to have fallen upon us by him, through him, and during hisgovernment?

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, whenthe first treaty with the Nabob was made. "That system, " says he, "isnot mine; it was made by General Clavering, Colonel Monson, and Mr. Francis. " So it was, my Lords. It did them very great honor, and Ibelieve it ever will do them honor, in the eyes of the British nation, that they took an opportunity, without the violation of faith, withoutthe breach of any one treaty, and without injury to any person, to dogreat and eminent services to the Company. But Mr. Hastings disclaimsit, unnecessarily disclaims it, for no one charges him with it. What wecharge him with is the abuse of that system. To one of these abuses Iwill now call your Lordships' attention. Finding, soon after hisappointment to the office of Governor-General, that the Nabob was likelyto get into debt, he turns him into a vassal, and resolves to treat himas such. You will observe that this is not the only instance in which, upon a failure of payment, the defaulter becomes directly a vassal. Youremember how Durbege Sing, the moment he fell into an arrear of tribute, became a vassal, and was thrown into prison, without any inquiry intothe causes which occasioned that arrear. With respect to the Nabob ofOude, we assert, and can prove, that his revenue was 3, 600, 000_l. _ atthe day of his father's death; and if the revenue fell off afterwards, there was abundant reason to believe that he possessed in abundance themeans of paying the Company every farthing. 

Before I quit this subject, your Lordships will again permit me toreprobate the malicious insinuations by which Mr. Hastings has thoughtproper to slander the virtuous persons who are the authors of thatsystem which he complains of. They are men whose characters this countrywill ever respect, honor, and revere, both the living and the dead, --thedead for the living, and the living for the dead. They will altogetherbe revered for a conduct honorable and glorious to Great Britain, whilsttheir names stand as they now do, unspotted by the least imputation ofoppression, breach of faith, perjury, bribery, or any other fraudwhatever. I know there was a faction formed against them upon that veryaccount. Be corrupt, you have friends; stem the torrent of corruption, you open a thousand venal mouths against you. Men resolved to do theirduty must be content to suffer such opprobrium, and I am content; in thename of the living and of the dead, and in the name of the Commons, Iglory in our having appointed some good servants at least to India. 

But to proceed. "This system was not, " says he, "of my making. " Youwould, then, naturally imagine that the persons who made this abominablesystem had also made some tyrannous use of it. Let us see what use theymade of it during the time of their majority in the Council. There wasan arrear of subsidy due from the Nabob. How it came into arrear weshall consider hereafter. The Nabob proposed to pay it by taxing thejaghires of his family, and taking some money from the Begum. This wasconsented to by Mr. Bristow, at that time Resident for the Company inOude; and to this arrangement Asoph ul Dowlah and his advisers lent awilling ear. What did Mr. Hastings then say of this transaction? Hecalled it a violent assumption of power on the part of the Council. Hedid not, you see, then allow that a bad system justified any personswhatever in an abuse of it. He contended that it was a violent attackupon the rights and property of the parties from whom the money was tobe taken, that it had no ground or foundation in justice whatever, andthat it was contrary to every principle of right and equity. 

Your Lordships will please to bear in mind, that afterwards, by his ownconsent, and the consent of the rest of the Council, this business wascompromised between the son, the mother, and their relations. A verygreat sum of money, which was most useful to the Company at that period, was raised by a family compact and arrangement among themselves. Thisproceeding was sanctioned by the Company, Mr. Hastings himselfconsenting; and a pledge was given to the Begums and family of theNabob, that this should be the last demand made upon them, --that itshould be considered, not as taken compulsively, but as a friendly andamicable 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 timeit was not Mr. Hastings's opinion that the badness of the system wouldjustify any violence as a consequence of it; and when the advancement ofthe money was agreed to between the parties, as a family and amicablecompact, he was as ready as anybody to propose and sanction a regulartreaty between the parties, that all claims on one side and all kind ofuneasiness on the other should cease forever, under the guardianship ofBritish faith. 

Mr. Hastings, as your Lordships remember, has conceded that Britishfaith is the support of the British empire; that, if that empire is tobe maintained, it is to be maintained by good faith; that, if it is tobe propagated, it is to be propagated by public faith; and that, if theBritish empire falls, it will be through perfidy and violence. These arethe principles which he assumes, when he chooses to reproach others. Butwhen he has to defend his own perfidy and breaches of faith, then, asyour Lordships will find set forth in his defence before the House ofCommons on the Benares charge, he denies, or at least questions, thevalidity of any treaty that can at present be made with India. Hedeclares that he considers all treaties as being weakened by aconsiderable degree of doubt respecting their validity and their bindingforce, 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 ashaving nothing to do with, on the plea of his being a dissentientmember: a principle which, like other principles, I shall take somenotice of by-and-by. Colonel Monson and General Clavering died soonafter, and Mr. Hastings obtained a majority in the Council, and wasthen, as he calls it, restored to his authority; so that any evil thatcould be done by evil men under that evil system could have lasted butfor a very short time indeed. From that moment, Mr. Hastings, in myopinion, became responsible for every act done in Council, while he wasthere, which he did not resist, and for every engagement which he didnot oppose. For your Lordships will not bear that miserable jargon whichyou have heard, shameful to office and to official authority, that aman, when, he happens not to find himself in a majority upon anymeasure, may think himself excusable for the total neglect of his duty;that in such a situation he is not bound to propose anything that itmight be proper to propose, or to resist anything that it might beproper to resist. What would be the inference from such an assumption?That he can never act in a commission; that, unless a man has thesupreme power, he is not responsible for anything he does or neglects todo. This is another principle which your Lordships will see constantlyasserted and constantly referred to by Mr. Hastings. Now I do contend, that, notwithstanding his having been in a minority, if there wasanything to be done that could prevent oppressive consequences, he wasbound to do that thing; and that he was bound to propose every possibleremedial measure. This proud, rebellious proposition against the law, that any one individual in the Council may say that he is responsiblefor nothing, because he is not the whole Council, calls for yourLordships' strongest reprobation. 

I must now beg leave to observe to you, that the treaty was made (and Iwish your Lordships to advert to dates) in the year 1775; Mr. Hastingsacquired the majority in something more than a year afterwards; andtherefore, supposing the acts of the former majority to have been everso iniquitous, their power lasted but a short time. From the year 1776to 1784 Mr. Hastings had the whole government of Oude in himself, byhaving the majority in the Council. My Lords, it is no offence that aGovernor-General, or anybody else, has the majority in the Council. Tohave the government in himself is no offence. Neither was it anyoffence, if you please, that the Nabob was virtually a vassal to theCompany, as he contends he was. For the question is not, what aGovernor-General _may_ do, but what Warren Hastings did do. He who has amajority in Council, and records his own acts there, may justify theseacts as legal: I mean the mode is legal. But as he executes whatever heproposes 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 hestates, the Nabob to be made by the treaty in 1775 eventually a vassalto the Company, has thought proper to make him a vassal to himself, forhis own private purposes. Your Lordships will see what corrupt andiniquitous purposes they were. In the first place, in order toannihilate in effect the Council, and to take wholly from them theircontrol in the affairs of Oude, he suppressed (your Lordships will findthe fact proved in your minutes) the Persian correspondence, which wasthe whole correspondence of Oude. This whole correspondence was secretedby him, and kept from the Council. It was never communicated to thePersian translator of the Company, Mr. Colebrooke, who had a salary forexecuting that office. It was secreted, and kept in the private cabinetof Mr. Hastings; from the period of 1781 to 1785 no part of it wascommunicated to the Council. There is nothing, as your Lordships haveoften found in this trial, that speaks for the man like himself; thereis 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, whichwere to be the vouchers for every public act, --which were to showwhether, in the Company's transactions, agreements, and treaties withthe native powers, the public faith was kept or not. You see them allcrammed into Mr. Scott's trunk: a trunk into which they put what theyplease, take out what they please, suppress what they please, or thrustin whatever will answer their purpose. The records of theGovernor-General and Council of Bengal are kept in Captain JonathanScott's trunk; this trunk is to be considered as the real and truechannel of intelligence between the Company and the country powers. Buteven 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 forthemselves, 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 beenannihilated during all these transactions, and have no other knowledgeof them than just what Mr. Hastings and his trunk-keeper thought properto give them. All, then, that we know of these transactions is from themiserable, imperfect, garbled correspondence. 

But even if these papers contained a full and faithful account of thecorrespondence, what we charge is its not being delivered to the Councilas it occurred from time to time. Mr. Hastings kept the whole governmentof Oude in his own hands; so that the Council had no power of judginghis acts, of checking, controlling, advising, or remonstrating. It wastotally annihilated by him; and we charge, as an act of treason andrebellion against the act of Parliament by which he held his office, hisdepriving the Council of their legitimate authority, by shutting themout from the knowledge of all affairs, --except, indeed, when he thoughtit expedient, for his own justification, to have their nominalconcurrence or subsequent acquiescence in any of his more violentmeasures. 

Your Lordships see Mr. Hastings's system, a system of concealment, asystem of turning the vassals of the Company into his own vassals, tomake them contributory, not to the Company, but to himself. He hasavowed this system in Benares; he has avowed it in Oude. It was hisconstant practice. Your Lordships see in Oude he kept a correspondencewith Mr. Markham for years, and did alone all the material acts whichought to have been done in Council. He delegated a power to Mr. Markhamwhich he had not to delegate; and you will see he has done the same inevery part of India. 

We first charge him not only with acting without authority, but with astrong presumption, founded on his concealment, of intending to actmischievously. We next charge his concealing and withdrawingcorrespondence, as being directly contrary to the orders of the Court ofDirectors, the practice of his office, and the very nature and existenceof the Council in which he was appointed to preside. We charge this as asubstantive 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, andconsequently fit for subserviency, what does he next do? I am speaking, not with regard to the time of his particular acts, but with regard tothe general spirit of the proceedings. He next flies in the face of theCompany upon the same principle on which he removed Mr. Fowke fromBenares. "I removed _him_ on political grounds, " says he, "against theorders of the Court of Directors, because I thought it necessary thatthe Resident should be a man of my own nomination and confidence. " AtOude he proceeds on the same principle. Mr. Bristow had been nominatedto the office of Resident by the Court of Directors. Mr. Hastings, by anact of Parliament, was ordered to obey the Court of Directors. Hepositively refuses to receive Mr. Bristow, for no other reason that weknow of but because he was nominated by the Court of Directors; hedefies the Court, and declares in effect that they shall not govern thatprovince, but that he will govern it by a Resident of his own. 

Your Lordships will mark his progress in the establishment of that newsystem, which, he says, he had been obliged to adopt by the evil systemof his predecessors. First, he annihilates the Council, formed by an actof Parliament, and by order of the Court of Directors. In the secondplace, he defies the order of the Court, who had the undoubtednomination of all their own servants, and who ordered him, under theseverest injunction, to appoint Mr. Bristow to the office of Resident inOude. 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 whileto be there, he sent Mr. Middleton and Mr. Johnson, who annihilated Mr. Bristow's authority so completely that no one public act passed throughhis hands. 

After he had ended this conflict with the Directors, and had entirelyshook off their authority, he resolved that the native powers shouldknow that they were not to look to the Court of Directors, but to lookto his arbitrary will in all things; and therefore, to the astonishmentof the world, and as if it were designedly to expose the nakedness ofthe Parliament of Great Britain, to expose the nakedness of the laws ofGreat Britain, and the nakedness of the authority of the Court ofDirectors to the country powers, he wrote a letter, which your Lordshipswill find in page 795 of the printed Minutes. In this letter the secretof his government is discovered to the country powers. They are given tounderstand, that, whatever exaction, whatever oppression or ruin theymay suffer, they are to look nowhere for relief but to him: not to theCouncil, not to the Court of Directors, not to the sovereign authorityof Great Britain, but to him, and him only. 

Before we proceed to this letter, we will first read to you the Minuteof Council by which he dismissed Mr. Bristow upon a former occasion, (itis in page 507 of the printed Minutes, ) that your Lordships may see hisaudacious defiance of the laws of the country. We wish, I say, before weshow you the horrible and fatal effects of this his defiance, to impresscontinually upon your Lordships' minds that this man is to be tried bythe laws of the country, and that it is not in his power to annihilatetheir authority and the authority of his masters. We insist upon it, that every man under the authority of this country is bound to obey itslaws. This minute relates to his first removal of Mr. Bristow: I read itin order to show that he dared to defy the Court of Directors so earlyas the year 1776. 

"Resolved, That Mr. John Bristow be recalled to the Presidency from thecourt of the Nabob of Oude, and that Mr. Nathaniel Middleton be restoredto the appointment of Resident at that court, subject to the orders andauthority of the Governor-General and Council, conformably to the motionof the Governor-General. "

I will next read to your Lordships the orders of the Directors for hisreinstatement, on the 4th of July, 1777. 

"Upon the most careful perusal of your proceedings upon the 2d ofDecember, 1776, relative to the recall of Mr. Bristow from the court ofthe Nabob of Oude, and the appointment of Mr. Nathaniel Middleton tothat station, we must declare our strongest disapprobation of the wholeof that transaction. We observe that the Governor-General's motion forthe recall of Mr. Bristow includes that for the restoration of Mr. Nathaniel Middleton; but as neither of those measures appear to usnecessary, or even justifiable, they cannot receive our approbation. With respect to Mr. Bristow, we find no shadow of charge against him. Itappears that he has executed his trust to the entire satisfaction evenof those members of the Council who did not concur in his appointment. You have unanimously recommended him to our notice; attention to yourrecommendation has induced us to afford him marks of our favor, and toreannex the emoluments affixed by you to his appointment, which had beendiscontinued by our order; and as we must be of opinion that a person ofacknowledged abilities, whose conduct has thus gained him the esteem ofhis superiors, ought not to be degraded without just cause, we do nothesitate to interpose in his behalf, and therefore direct that Mr. Bristow do forthwith return to his station of Resident at Oude, fromwhich he has been so improperly removed. "

Upon the receipt of these orders by the Council, Mr. Francis, then amember of the Council, moves, "That, in obedience to the Company'sorders, Mr. Bristow be forthwith appointed and directed to return to hisstation of Resident at Oude, and that Mr. Purling be ordered to deliverover charge of the office to Mr. Bristow immediately on his arrival, andreturn himself forthwith to the Presidency; also that theGovernor-General be requested to furnish Mr. Bristow with the usualletter 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 administrationshould at such a time hold him forth as an instrument for thedegradation of the first executive member of this government? What arethe professed objects of his appointment? What are the merits andservices, or what the qualifications, which entitle him to such anuncommon distinction? Is it for his superior integrity, or from hiseminent abilities, that he is to be dignified, at such hazards of everyconsideration that ought to influence members of this administration? Ofthe 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 acompetition; and for the test of his abilities, I appeal to the letterwhich he has dared to write to this board, and which, I am ashamed tosay, we have suffered. I desire that a copy of it may be inserted inthis day's proceedings, that it may stand before the eyes of everymember of the board, when he shall give his vote upon a question forgiving their confidence to a man, their servant, who has publiclyinsulted them, his masters, and the members of the government, to whomhe owes his obedience; who, assuming an association with the Court ofDirectors, and erecting himself into a tribunal, has arraigned them fordisobedience of orders, passed judgment upon them, and condemned oracquitted them as their magistrate and superior. Let the board considerwhether a man possessed of so independent a spirit, who has alreadyshown such a contempt of their authority, who has shown himself sowretched an advocate for his own cause and negotiator for his owninterest, is fit to be trusted with the guardianship of their honor, theexecution of their measures, and as their confidential manager andnegotiator with the princes of India. "

My Lords, you here see an instance of what I have before stated to yourLordships, and what I shall take the liberty of recommending to yourconstant consideration. You see that a tyrant and a rebel is one and thesame thing. You see this man, at the very time that he is a direct rebelto the Company, arbitrarily and tyrannically displacing Mr. Bristow, although he had previously joined in the approbation of his conduct, andin voting him a pecuniary reward. He is ordered by the Court ofDirectors to restore that person, who desires, in a suppliant, decent, proper tone, that the Company's orders should produce their effect, andthat the Council would have the goodness to restore him to hissituation. 

My Lords, you have seen the audacious insolence, the tyrannical pride, with which he dares to treat this order. You have seen the recordedminute which he has dared to send to the Court of Directors; and inthis you see, that, when he cannot directly asperse a man's conduct, andhas nothing to say against it, he maliciously, I should perhaps rathersay enviously, insinuates that he had unjustly made his fortune. "Youare, " says he, "to judge from the independence of his manner and style, whether he could or no have got that without some unjust means. " Godforbid I should ever be able to invent anything that can equal theimpudence of what this man dares to write to his superiors, or theinsolent style in which he dares to treat persons who are not hisservants!

Who made the servants of the Company the master of the servants of theCompany? The Court of Directors are their fellow-servants; they are allthe servants of this kingdom. Still the claim of a fellow-servant tohold an office which the Court of Directors had legally appointed him tois considered by this audacious tyrant as an insult to him. By this youmay judge how he treats not only the servants of the Company, but thenatives of the country, and by what means he has brought them into thatabject state of servitude in which they are ready to do anything hewishes and to sign anything he dictates. I must again beg your Lordshipsto remark what this man has had the folly and impudence to place uponthe records of the Council of which he was President; and I will ventureto assert that so extraordinary a performance never before appeared onthe records of any court, Eastern or European. Because Mr. Bristowclaims an office which is his right and his freehold as long as theCompany chooses, Mr. Hastings accuses him of being an accomplice withthe Court of Directors in a conspiracy against him; and because, afterlong delays, he had presented an humble petition to have the Court ofDirectors' orders in his favor carried into execution, he says "he haserected himself into a tribunal of justice; that he has arraigned theCouncil for disobedience of orders, passed judgment upon them, andcondemned or acquitted them as their magistrate and superior. "

Let us suppose his Majesty to have been pleased to appoint any one to anoffice in the gift of the crown, what should we think of the personwhose business it was to execute the King's commands, if he should sayto the person appointed, when he claimed his office, "You shall not haveit, 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 havebeen as conversant with the manners and customs of the East as mostpersons whose business has not directly led them into that country)where such conduct would have been tolerated. A bashaw, if he should beordered by the Grand Seignior to invest another with his office, putsthe letter upon his head, and obedience immediately follows. 

But the obedience of a barbarous magistrate should not be compared tothe obedience which a British subject owes to the laws of his country. Mr. Hastings receives an order which he should have instantly obeyed. Heis reminded of this by the person who suffers from his disobedience; andthis 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 anindependent spirit. It is this, and not his having shown such acontempt of their authority, not his having shown himself so wretched anadvocate 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 managerand negotiator with the princes of India. 

But, my Lords, what is this want of skill which Mr. Bristow has shown innegotiating his own affairs? Mr. Hastings will inform us. "He shouldhave pocketed the letter of the Court of Directors; he should never havemade the least mention of it. He should have come to my banian, CantooBaboo; he should have offered him a bribe upon the occasion. That wouldhave been the way to succeed with me, who am a public-spirited taker ofbribes and nuzzers. But this base fool, this man, who is but a vilenegotiator for his own interest, has dared to accept the patronage ofthe Court of Directors. He should have secured the protection of CantooBaboo, their more efficient rival. This would have been the skilful modeof doing the business. " But this man, it seems, had not only shownhimself an unskilful negotiator, he had likewise afforded evidence ofhis want of integrity. And what is this evidence? His having "enabledhimself to become the _principal_ in such a competition. " That is tosay, he had, by his meritorious conduct in the service of his masters, the Directors, obtained their approbation and favor. Mr. Hastings thencontemptuously adds, "And for the test of his abilities, I appeal to theletter which he has dared to write to the board, and which I am ashamedto say we have suffered. " Whatever that letter may be, I will venture tosay there is not a word or syllable in it that tastes of such insolenceand arbitrariness with regard to the servants of the Company, hisfellow-servants, of such audacious rebellion with regard to the laws ofhis country, as are contained in this minute of Mr. Hastings. 

But, my Lords, why did he choose to have Mr. Middleton appointedResident? Your Lordships have not seen Mr. Bristow: you have only heardof 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 goodman to keep a secret: I describe him no further. You know whatqualifications Mr. Hastings requires in a favorite. You also know why hewas turned out of his employment, with the approbation of the Court ofDirectors: that it was principally because, when Resident in Oude, hepositively, audaciously, and rebelliously refused to lay before theCouncil the correspondence with the country powers. He says he gave itup 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 evenfind Mr. Middleton's trunk, though Mr. Jonathan Scott did at lastproduce his. The whole of the Persian correspondence, during Mr. Middleton's Residence, was refused, as I have said, to the board atCalcutta and to the Court of Directors, --was refused to the legalauthorities; and Mr. Middleton, for that very refusal, was againappointed by Mr. Hastings to supersede Mr. Bristow, removed without apretence of offence; he received, I say, this appointment from Mr. Hastings, as a reward for that servile compliance by which he dissolvedevery tie between himself and his legal masters. 

The matter being now brought to a simple issue, whether theGovernor-General is or is not bound to obey his superiors, I shall hereleave it with your Lordships; and I have only to beg your Lordships willremark the course of events as they follow each other, --keeping in mindthat the prisoner at your bar declared Mr. Bristow to be a man ofsuspected integrity, on account of his independence, and deficient inability, 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 theResident to transact the money concerns of the Company, as well as itspolitical negotiations. You will now see how Mr. Hastings divided thatduty, after he became apprehensive that the Court of Directors might beinclined to assert their own authority, and to assert it in a propermanner, which they so rarely did. When, therefore, his passion hadcooled, when his resentment of those violent indignities which had beenoffered to him, namely, the indignity of being put in mind that he hadany superior under heaven, (for I know of no other, ) he adopts theexpedient of dividing the Residency into two offices; he makes a faircompromise between himself and the Directors; he appoints Mr. Middletonto the management of the money concerns, and Mr. Bristow to that of thepolitical affairs. Your Lordships see that Mr. Bristow, upon whom he hadfixed the disqualification for political affairs, was the very personappointed to that department; and to Mr. Middleton, the man of hisconfidence, he gives the management of the money transactions. Hediscovers plainly where his heart was: for where your treasure is, therewill your heart be also. This private agent, this stifler ofcorrespondence, a man whose costive retention discovers no secretcommitted to him, and whose slippery memory is subject to a diarrhoeawhich permits everything he did know to escape, --this very man he placesin 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 Companyfor fair and clear accounts, was appointed superintendent of politicalaffairs, an office for which Mr. Hastings declared he was totally unfit. 

My Lords, you will judge of the designs which the prisoner had incontemplation, when he dared to commit this act of rebellion against theCompany; you will see that it could not have been any other than gettingthe money transactions of Oude into his own hands. The presumption of acorrupt motive is here as strong as, I believe, it possibly can be. 

The next point to which I have to direct your Lordships' attention isthat part of the prisoner's conduct, in this matter, by which he exposedthe nakedness of the Company's authority to the native powers. You wouldimagine, that, after the first dismissal of Mr. Bristow, Mr. Hastingswould have done with him forever; that nothing could have induced himagain to bring forward a man who had dared to insult him, a man who hadshown an independent spirit, a man who had dishonored the Council andinsulted his masters, a man of doubtful integrity and convictedunfitness for office. But, my Lords, in the face of all this, heafterwards sends this very man, with undivided authority, into thecountry as sole Resident. And now your Lordships shall hear in whatmanner he accounts for this appointment to Gobind Ram, the _vakeel_, orambassador, of the Nabob Asoph ul Dowlah at Calcutta. It is in page 795of 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 Khân, 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 coöperate 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, andworthy 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 prisonerthinks proper to reveal it, the true secret of the transaction. 

He confesses, first, the state of the Vizier's country, as communicatedto him in various accounts of the anarchy and confusion said to reignthroughout his territories. This was in the year 1782, during the timethat 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, everyone of them supposed to be in his strictest confidence, --the Nabob andhis vassal, Hyder Beg Khân, being, as we shall show afterwards, entirelyhis dependants, --and yet Mr. Hastings declares, that not one of them haddone their duty, or had written him one word concerning the state of thecountry, and the anarchy and confusion that prevailed in it, and that, when the Nabob did write, his assertions were contrary to the real stateof things. Now this irregular correspondence, which he carried on atLucknow, and which gave him, as he pretends, this contradictoryinformation, was, as your Lordships will see, nothing more or less thana complete fraud. 

Your Lordships will next observe, that he tells the vakeel his reasonfor 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 notpatronize him from private motives, but in direct obedience to the orderof the Court of Directors. He then adds the assurance which he hadreceived 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 knewthe Vizier was once well pleased with him, (Mr. Bristow, ) and that hisformal complaints against him were written at the instigation of Mr. Middleton. 

Here is another discovery, my Lords. When he recalled Mr. Bristow, hedid it under the pretence of its being desired by the Nabob of Oude; andthat, consequently, he would not keep at the Nabob's court a man thatwas disagreeable to him. Yet, when the thing comes to be opened, itappears that Mr. Middleton had made the Nabob, unwillingly, write afalse letter. This subornation of falsehood appears also to have beenknown to Mr. Hastings. Did he, either as the natural guardian andprotector of the reputation of his fellow-servants, or as the officialadministrator of the laws of his country, or as a faithful servant ofthe Company, ever call Mr. Middleton to an account for it? No, never. Toeverybody, therefore, acquainted with the characters and circumstancesof the parties concerned, the conclusion will appear evident that he washimself the author of it. But your Lordships will find there is no endof his insolence and duplicity. 

He next tells the vakeel, that the reason why he postponed the missionof Mr. Bristow to Lucknow was lest the people of Lucknow should think hehad obtained his appointment in consequence of orders from Europe, andcontrary to the Governor's inclination. You see, my Lords, he would havethe people of the country believe that they are to receive the personappointed Resident not as appointed by the Company, but in consequenceof his being under Mr. Hastings's particular patronage; and to removefrom them any suspicion that the Resident would obey the orders of theCourt of Directors, or any orders but his own, he proceeds in the mannerI 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, anddesired it. He here says, that he knew the Nabob did not desire it, butthat the letter of complaint really and substantially was Mr. Middleton's. Lastly, as he recalls Mr. Bristow, so he wishes him to becalled back in the same fictitious and fraudulent manner. This system offraud proves that there is not one letter from that country, not one actof this Vizier, not one act of his ministers, not one act of hisambassadors, but what is false and fraudulent. And now think, my Lords, first, of the slavery of the Company's servants, subjected in thismanner to the arbitrary will and corrupt frauds of Mr. Hastings! Nextthink of the situation of the princes of the country, obliged tocomplain without matter of complaint, to approve without [ground?] ofsatisfaction, 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 nativeprinces suffered from this system of fraud and duplicity. Their moreessential interests, and those of the people, were involved in it; itpervaded 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 perpetuallyarise in his mind whether he is not cheated and imposed upon. He couldnever tell when he had Mr. Hastings fixed upon any point. He now findshim recommending Mr. Middleton, and then declaring that Mr. Middletonneglects the duty of his office, and gives him, Gobind Ram, informationthat is fraudulent and directly contrary to the truth. He is let intovarious contradictory secrets, and becomes acquainted with innumerablefrauds, falsehoods, and prevarications. He knew that the whole pretendedgovernment of Oude was from beginning to end a deception; that it was animposture for the purpose of corruption and peculation. Such was thesituation of the Nabob's vakeel. The Nabob himself was really at a lossto know who had and who had not the Governor's confidence; whether hewas acting in obedience to the orders of the Court of Directors, orwhether their orders were not always to be disobeyed. He thus writes toGobind Ram, who was exactly in the same uncertainty. 

"As to the commands of Mr. Hastings which you write on the subject ofthe distraction of the country and the want of information from me, andhis wishes, that, as Mr. John Bristow has shown sincere wishes andattachment to Mr. Hastings, I should write for him to send Mr. JohnBristow, it would have been proper and necessary for you privately tohave understood what were Mr. Hastings's real intentions, whether thechoice of sending Mr. John Bristow was his own desire, or whether it wasin compliance with Mr. Macpherson's, that I might then have writtenconformably thereto. Writings are now sent to you for both cases; havingprivately understood the wishes of Mr. Hastings, deliver whichever ofthe writings he should order you; for I study Mr. Hastings'ssatisfaction; whoever is his friend is mine, and whoever is his enemy ismine. But in both these cases, my wishes are the same; that havingconsented to the paper of questions which Major Davy carried with him, and having given me the authority of the country, whomever he mayafterwards appoint, I am satisfied. I am now brought to great distressby these gentlemen, who ruin me; in case of consent, I am contented withMajors Davy and Palmer. Hereafter, whatever may be Mr. Hastings'sdesire, 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; ruinedequally by them all; and at last declaring in a tone of despair, "If youhave a mind really to keep Major Davy and Major Palmer here, why, I mustconsent to it. Do what you please with me, I am your creature; for God'ssake, let me have a little rest. "

Your Lordships shall next hear what account Hyder Beg Khân, the Vizier'sprime-minister, gives of the situation in which he and his master wereplaced. 

 _Extract of a Letter from Hyder Beg Khân, 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 anypublic theatre? You see here, behind the ostensible scenery, all thecrooked working of the machinery developed and laid open to the world. You now see by what secret movement the master of the mechanism hasconducted the great Indian opera, --an opera of fraud, deceptions, andharlequin tricks. You have it all laid open before you. The ostensiblescene is drawn aside; it has vanished from your sight. All the struttingsignors, and all the soft signoras are gone; and instead of a brilliantspectacle of descending chariots, gods, goddesses, sun, moon, and stars, you have nothing to gaze on but sticks, wire, ropes, and machinery. Youfind the appearance all false and fraudulent; and you see the wholetrick 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 realstate of Mr. Hastings's government in India. And can your Lordshipsbelieve that all this mechanism of fraud, prevarication, and falsehoodcould have been intended for any purpose but to forward that robbery, corruption, and peculation by which Mr. Hastings has destroyed one ofthe finest countries upon earth? Is it necessary, after this, for me totell you that you are not to believe one word of the correspondencestated by him to have been received from India? This discovery goes tothe whole matter of the whole government of the country. You have seenwhat 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 theeffects of Aladdin's lamp, --of which your Lordships may read in booksmuch more worthy of credit than Mr. Hastings's correspondence. I havegiven 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 insupposing the letter of Hyder Beg Khân to be a part of Mr. Hastings'scorrespondence. It comes from another quarter, not much less singular, and equally authentic and unimpeachable. But though it is not from thetrunk, it smells of the trunk, it smells of the leather. I was as proudof my imaginary discovery as Sancho Panza was that one of his ancestorshad discovered a taste of iron in some wine, and another a taste ofleather in the same wine, and that afterwards there was found in thecask a little key tied to a thong of leather, which had given to thewine a taste of both. Now, whether this letter tasted of the leather ofthe trunk or of the iron of Mr. Macpherson, I confess I was a littleout in my suggestion and my taste. The letter in question was written byHyder Beg Khân, after Mr. Hastings's departure, to Mr. Macpherson, whenhe succeeded to the government. That gentleman thus got possession of akey to the trunk; and it appears to have been his intentions to followthe steps of his predecessor, to act exactly in the same manner, and inthe same manner to make the Nabob the instrument of his own ruin. Thisletter was written by the Nabob's minister to Sir John Macpherson, newlyinaugurated into his government, and who might be supposed not to beacquainted with all the best of Mr. Hastings's secrets, nor to have hadall the trunk correspondence put into his hands. However, here is atrunk extraordinary, and its contents are much in the manner of theother. The Nabob's minister acquaints him with the whole secret of thesystem. It is plain that the Nabob considered it as a system not to bealtered: that there was to be nothing true, nothing aboveboard, nothingopen in the government of his affairs. When you thus see that there canbe little doubt of the true nature of the government, I am sure thathereafter, when we come to consider the effects of that government, itwill clear up and bring home to the prisoner at your bar all we shallhave 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 hadmanifested any symptom of independence, or who considered the orders ofthe Directors as a rule of their conduct, --having brought everyEnglishman under his yoke, and made them supple and fit instruments forall his designs, --then gave it to be understood that such alone werefit persons to be employed in important affairs of state. Consider, myLords, the effect of this upon the whole service. Not one man thatappears to pay any regard to the authority of the Directors is to expectthat any regard will be paid to himself. So that this man not onlyrebels 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 fromyour minds that I have called him the captain-general of the whole hostof actors in Indian iniquity, under whom that host was arrayed, disciplined, and paid. This language which I used was not, as fools havethought proper to call it, offensive and abusive; it is in a propercriminatory tone, justified by the facts that I have stated to you, andin every step we take it is justified more and more. I take it as a textupon which I mean to preach; I take it as a text which I wish to have inyour 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 asystem of iniquity and rebellion, and will not suffer with impunity anyone honest man to exist in India, if he can help it. Every mark ofobedience to the legal authority of the Company is by him condemned; andif there is any virtue remaining in India, as I think there is, it isnot 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, atleast 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, andthereby subjected to the will of an arbitrary government, is made by himthe instrument of his own degradation, the instrument of his (theGovernor's) falsehoods, the instrument of his peculations; and that hehad been subjected to all this degradation for the purposes of the mostodious tyranny, violence, and corruption. 

Mr. Hastings, having assumed the government to himself, soon made Oude aprivate domain. It had, to be sure, a public name, but it was to allpractical intents and purposes his park, or his warren, --a place, as itwere, for game, whence he drew out or killed, at an earlier or laterseason, as he thought fit, anything he liked, and brought it to histable according as it served his purpose. Before I proceed, it will notbe improper for me to remind your Lordships of the legitimate ends towhich all controlling and superintending power ought to be directed. Whether a man acquires this power by law or by usurpation, there arecertain duties attached to his station. Let us now see what these dutiesare. 

The first is, to take care of that vital principle of every state, itsrevenue. The next is, to preserve the magistracy and legal authoritiesin 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, yourLordships will find, that, from three millions and upwards which Istated to be the revenue of Oude, and which Mr. Hastings, I believe, oranybody for him, has never thought proper to deny, it sunk under hismanagement to about one million four hundred and forty thousand pounds:and even this, Mr. Middleton says, (as you may see in your minutes, ) wasnot completely realized. Thus, my Lords, you see that one half of thewhole revenue of the country was lost after it came into Mr. Hastings'smanagement. Well, but it may perhaps be said this was owing to theNabob's own imprudence. No such thing, my Lords; it could not be so; forthe whole _real_ administration and government of the country was in thehands of Mr. Hastings's agents, public or private. 

To let you see how provident Mr. Hastings's management of it was, Ishall produce to your Lordships one of the principal manoeuvres that headopted for the improvement of the revenue, and for the happiness andprosperity 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 asno other than the acts of Mr. Hastings, writes to the Council to have abody of British officers, for the purposes of improving the disciplineof his troops, collecting his revenues, and repressing disorder andoutrage among his subjects. This proposal was ostensibly fair andproper; and if I had been in the Council at that time, and the Nabob hadreally and _bonâ fide_ made such a request, I should have said he hadtaken a very reasonable and judicious step, and that the Company oughtto aid him in his design. 

Among the officers sent to Oude, in consequence of this requisition, wasthe well-known Colonel Hannay: a man whose name will be bitterly andlong remembered in India. This person, we understand, had beenrecommended to Mr. Hastings by Sir Elijah Impey: and his appointment wasthe natural consequence of such patronage. I say the naturalconsequence, because Sir Elijah Impey appears on your minutes to havebeen Mr. Hastings's private agent and negotiator in Oude. In that light, and in that light only, I consider Colonel Hannay in this business. Wecannot prove that he was not of Mr. Hastings's own nomination originallyand primarily; but whether we take him in this way, or as recommended bySir Elijah Impey, or anybody else, Mr. Hastings is equally responsible. 

Colonel Hannay is sent up by Mr. Hastings, and has the command of abrigade, of two regiments I think, given to him. Thus far all isapparently fair and easily understood. But in this country we findeverything in masquerade and disguise. We find this man, instead ofbeing an officer, farmed the revenue of the country, as is proved byColonel Lumsden and other gentlemen, who were his sub-farmers and hisassistants. Here, my Lords, we have a man who appeared to have been sentup the country as a commander of troops, agreeably to the Nabob'srequest, and who, upon our inquiry, we discover to have beenfarmer-general of the country! We discover this with surprise; and Ibelieve, till our inquiries began, it was unknown in Europe. We have, however, proved upon your Lordships' minutes, by an evidence produced byMr. Hastings himself, that Colonel Hannay was actually farmer-general ofthe countries of Baraitch and Goruckpore. We have proved upon yourminutes that Colonel Hannay was the only person possessed of power inthe country; that there was no magistrate in it, nor any administrationof the law whatever. We have proved to your Lordships that in hischaracter of farmer-general he availed himself of the influence derivedfrom commanding a battalion of soldiers. In short, we have proved thatthe whole power, civil, military, municipal, and financial, resided inhim; and we further refer your Lordships to Mr. Lumsden and Mr. Halhedfor the authority which he possessed in that country. Your Lordships, Iam sure, will supply with your diligence what is defective in mystatement; I have therefore taken the liberty of indicating to you whereyou 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 tothe Nabob as a commander of his troops, while in reality he is forcedupon that prince as his farmer-general. He is invested with the wholecommand of the country, while the sovereign is unable to control him, orto prevent his extorting from the people whatever he pleases. 

If we are asked what the terms of his farm were, we cannot discover thathe farmed the country at any certain sum. We cannot discover that he wassubjected to any terms, or confined by any limitations. Armed witharbitrary power, and exercising that power under a false title, hisexactions from the poor natives were only limited by his own pleasure. Under these circumstances, we are now to ask what there was to preventhim from robbing and ruining the people, and what security against hisrobbing the exchequer of the person whose revenue he farmed. 

You are told by the witnesses in the clearest manner, (and, after whatyou have heard of the state of Oude, you cannot doubt the fact, ) thatnobody, not even the Nabob, dared to complain against him, --that he wasconsidered as a man authorized and supported by the power of the Britishgovernment; and it is proved in the evidence before you that he vexedand harassed the country to the utmost extent which we have stated inour article of charge, and which you would naturally expect from a manacting under such false names with such real powers. We have proved thatfrom some of the principal zemindars in that country, who held farms letto them for twenty-seven thousand rupees a year, a rent of sixtythousand was demanded, and in some cases enforced, --and that upon therefusal of one of them to comply with this demand, he was driven out ofthe country. 

Your Lordships will find in the evidence before you that the inhabitantsof the country were not only harassed in their fortunes, but cruellytreated in their persons. You have it upon Mr. Halhed's evidence, and itis not attempted, that I know of, to be contradicted, that the peoplewere confined in open cages, exposed to the scorching heat of the sun, for pretended or real arrears of rent: it is indifferent which, becauseI consider all confinement of the person to support an arbitraryexaction to be an abomination not to be tolerated. They have endeavored, indeed, to weaken this evidence by an attempt to prove that a man dayand night in confinement in an open cage suffers no inconvenience. Andhere I must beg your Lordships to observe the extreme unwillingness thatappears in these witnesses. Their testimony is drawn from them drop bydrop, their answers to our questions are never more than yes or no; butwhen they are examined by the counsel on the other side, it flows asfreely as if drawn from a perennial spring: and such a spring we have inIndian corruption. We have, however, proved that in these cages therenters were confined till they could be lodged in the dungeons or mudforts. We have proved that some of them were obliged to sell theirchildren, that others fled the country, and that these practices werecarried to such an awful extent that Colonel Hannay was under thenecessity of issuing orders against the unnatural sale and flight whichhis rapacity had occasioned. 

The prisoner's counsel have attempted to prove that this had been acommon practice in that country. And though possibly some person aswicked as Colonel Hannay might have been there before at some time orother, no man ever sold his children but under the pressure of somecruel exaction. Nature calls out against it. The love that God hasimplanted in the heart of parents towards their children is the firstgerm of that second conjunction which He has ordered to subsist betweenthem and the rest of mankind. It is the first formation and first bondof 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 ableto 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. Allcreatures love their offspring; next to that they love their homes: theyhave a fondness for the place where they have been bred, for thehabitations they have dwelt in, for the stalls in which they have beenfed, the pastures they have browsed in, and the wilds in which they haveroamed. We all know that the natal soil has a sweetness in it beyond theharmony of verse. This instinct, I say, that binds all creatures totheir country, never becomes inert in us, nor ever suffers us to want amemory of it. Those, therefore, who seek to fly their country can onlywish to fly from oppression: and what other proof can you want of thisoppression, when, as a witness has told you, Colonel Hannay was obligedto put bars and guards to confine the inhabitants within the country?

We have seen, therefore, Nature violated in its strongest principles. Wehave seen unlimited and arbitrary exaction avowed, on no pretence of anylaw, rule, or any fixed mode by which these people were to be dealtwith. All these facts have been proved before your Lordships by costiveand unwilling witnesses. In consequence of these violent and crueloppressions, a general rebellion breaks out in the country, as wasnaturally to be expected. The inhabitants rise as if by common consent;every farmer, every proprietor of land, every man who loved his familyand his country, and had not fled for refuge, rose in rebellion, as theycall it. My Lords, they did rebel; it was a just rebellion. Insurrectionwas there just and legal, inasmuch as Colonel Hannay, in defiance of thelaws and rights of the people, exercised a clandestine, illegalauthority, against which there can be no rebellion in its proper sense. 

As a rebellion, however, and as a rebellion of the most unprovokedkind, it was treated by Colonel Hannay; and to one instance of the meanstaken for suppressing it, as proved by evidence before your Lordships, Iwill just beg leave to call your attention. One hundred and fifty of theinhabitants had been shut up in one of the mud forts I have mentioned. The people of the country, in their rage, attacked the fort, anddemanded the prisoners; they called for their brothers, their fathers, their husbands, who were confined there. It was attacked by the jointassault of men and women. The man who commanded in the fort immediatelycut off the heads of eighteen of the principal prisoners, and tossedthem over the battlements to the assailants. There happened to be aprisoner in the fort, a man loved and respected in his country, and who, whether justly or unjustly, was honored and much esteemed by all thepeople. "Give us our Rajah, Mustapha Khân!" (that was the name of theman confined, ) cried out the assailants. We asked the witness at yourbar what he was confined for. He did not know; but he said that ColonelHannay had confined him, and added, that he was sentenced to death. Wedesired to see the _fetwah_, or decree, of the judge who sentenced him. No, --no such thing, nor any evidence of its having ever existed, couldbe produced. We desired to know whether he could give any account of theprocess, any account of the magistrate, any account of the accuser, anyaccount of the defence, --in short, whether he could give any accountwhatever of this man's being condemned to death. He could give noaccount of it, but the orders of Colonel Hannay, who seems to haveimprisoned and condemned him by his own arbitrary will. Upon the demandof Rajah Mustapha by the insurgents being made known to Colonel Hannay, he sends an order to the commander of the fort, a man already stainedwith the blood of all the people who were murdered there, that, if hehad not executed Mustapha Khân, he should execute him immediately. Theman is staggered at the order, and refuses to execute it, as not beingdirectly addressed to him. Colonel Hannay then sends a Captain Williams, who has appeared here as an evidence at your bar, and who, together withCaptain Gordon and Major Macdonald, both witnesses also here, were allsub-farmers and actors under Colonel Hannay. This Captain Williams, Isay, goes there, and, without asking one of those questions which I putto the witness at your bar, and desiring nothing but Colonel Hannay'sword, orders the man to be beheaded; and accordingly he was beheaded, agreeably to the orders of Colonel Hannay. Upon this, the rebellionblazed out with tenfold fury, and the people declared they would berevenged for the destruction of their zemindar. 

Your Lordships have now seen this Mustapha Khân imprisoned and sentencedto death by Colonel Hannay, without judge and without accuser, withoutany evidence, without the _fetwah_, or any sentence of the law. This manis thus put to death by an arbitrary villain, by a more than crueltyrant, Colonel Hannay, the substitute of a ten thousand times morecruel tyrant, Mr. Hastings. 

In this situation was the country of Oude, under Colonel Hannay, when hewas removed from it. The knowledge of his misconduct had before inducedthe 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, wasforced to receive him; and again he ravages and destroys that devotedcountry, till the time of which I have been just speaking, when he wasdriven 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 wentback to Calcutta; that he was supposed, from a state of debt, (in whichhe was known to have been when he left that city, ) to have returned fromOude with the handsome sum of 300, 000_l. _, of which 80, 000_l. _ was ingold mohurs. This is declared to be the universal opinion in India, andno man has ever contradicted it. Ten persons have given evidence to thateffect; not one has contradicted it, from that hour to this, that I everheard of. The man is now no more. Whether his family have the whole ofthe plunder or not, --what partnership there was in this business, --whatshares, what dividends were made, and who got them, --about all thispublic opinion varied, and we can with certainty affirm nothing; butthere ended the life and exploits of Colonel Hannay, farmer-general, civil officer, and military commander of Baraitch and Goruckpore. Butnot so ended Mr. Hastings's proceedings. 

Soon after the return of Colonel Hannay to Calcutta, this miserableNabob received intelligence, which concurrent public fame supported, that Mr. Hastings meant to send him up into the country again, on asecond expedition, probably with some such order as this:--"You havesucked blood enough for yourself, now try what you can do for yourneighbors. " The Nabob was not likely to be misinformed. His friend andagent, Gobind Ram, was at Calcutta, and had constant access to all Mr. Hastings's people. Mr. Hastings himself tells you what instructionsthese vakeels always have to search into and discover all histransactions. This Gobind Ram, alarmed with strong apprehensions, andstruck with horror at the very idea of such an event, apprised hismaster of his belief that Mr. Hastings meant to send Colonel Hannayagain into the country. Judge now, my lords, what Colonel Hannay musthave been, from the declaration which I will now read to you, extortedfrom that miserable slave, the Nabob, who thus addresses Mr. Hastings. 

"My country and house belong to you; there is no difference. I hope thatyou desire in your heart the good of my concerns. Colonel Hannay isinclined to request your permission to be employed in the affairs ofthis quarter. If by any means any matter of this country dependent on meshould be intrusted to the Colonel, I swear by the Holy Prophet, that Iwill not remain here, but will go from hence to you. From your kindnesslet no concern dependent on me be intrusted to the Colonel, and obligeme by a speedy answer which may set my mind at ease. "

We know very well that the prisoner at your bar denied his having anyintention to send him up. We cannot prove them, but we maintain thatthere were grounds for the strongest suspicions that he entertained suchintentions. He cannot deny the reality of this terror which existed inthe minds of the Nabob and his people, under the apprehension that hewas to be sent up, which plainly showed that they at least consideredthere was ground enough for charging him with that intention. Whatreason was there to think that he should not be sent a third time, whohad been sent twice before? Certainly, none; because every circumstanceof Mr. Hastings's proceedings was systematical, and perfectly well knownat Oude. 

But suppose it to have been a false report; it shows all that theManagers wish to show, the extreme terror which these creatures andtools of Mr. Hastings struck into the people of that country. His denialof any intention of again sending Colonel Hannay does not disproveeither the justness of their suspicions or the existence of the terrorwhich his very name excited. 

My Lords, I shall now call your attention to a part of the evidencewhich we have produced to prove the terrible effects of Colonel Hannay'soperations. Captain Edwards, an untainted man, who tells you that he hadpassed through that country again and again, describes it as bearing allthe marks of savage desolation. Mr. Holt says it has fallen from itsformer state, --that whole towns and villages were no longer peopled, andthat the country carried evident marks of famine. One would have thoughtthat 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 thecommand of a thousand men in the provinces of Oude, but really to theadministration of the revenues of the country. He administered them muchin the same manner as Colonel Hannay had done. He, however, transmittedto the government at Calcutta a partial representation of the state ofthe provinces, the substance of which was, that the natives were exposedto every kind of peculation, and that the country was in a horriblestate of confusion and disorder. This is upon the Company's records; andalthough not produced in evidence, your Lordships may find it, for ithas been printed over and over again. This man went up to the Vizier; inconsequence 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 thesemilitary purveyors of revenue. Your Lordships shall hear the Vizier'sown account of what he suffered from British officers, and into what astate Mr. Hastings brought that country by the agency of officers who, under the pretence of defending it, were invested with powers whichenabled them to commit most horrible abuses in the administration of therevenue, 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 stationsin the Nabob's dominions. You see the whole was one universal scene ofplunder and rapine. You see all this was known to Mr. Hastings, whonever inflicted any punishments for all this horrible outrage. You seethe utmost he has done is merely to recall one man, Major Osborne, whowas by no means the only person deeply involved in these charges. Henominated all these people; he has never called any of them to anaccount. Shall I not, then, call him their captain-general? Shall notyour Lordships call him so? And shall any man in the kingdom call him byany other name? We see all the executive, all the civil and criminaljustice of the country seized on by him. We see the trade and all theduties seized upon by his creatures. We see them destroying establishedmarkets, and creating others at their pleasure. We see them, in thecountry of an ally and in a time of peace, producing all theconsequences of rapine and of war. We see the country ruined anddepopulated by men who attempt to exculpate themselves by charging theirunhappy victims with rebellion. 

And now, my Lords, who is it that has brought to light all theseoutrages and complaints, the existence of which has never been denied, and for which no redress was ever obtained, and no punishment everinflicted? Why, Mr. Hastings himself has brought them before you; theyare found in papers which he has transmitted. God, who inflictsblindness upon great criminals, in order that they should meet with thepunishment they deserve, has made him the means of bringing forward thisscene, which we are maliciously said to have falsely and maliciouslydevised. If any one of the ravages [charges?] contained in that longcatalogue of grievances is false, Warren Hastings is the person who mustanswer for that individual falsehood. If they are generally false, heis to answer for the false and calumniating accusation; and if they aretrue, my Lords, he only is answerable, for he appointed those ministersof outrage, and never called them to account for their misconduct. 

Let me now show your Lordships the character that Mr. Hastings gives ofall the British officers. It is to be found in an extract from theAppendix to that part of his Benares Narrative in which he comments uponthe treaty of Chunar. Mark, my Lords, what the man himself says of thewhole military service. 

"Notwithstanding the great benefit which the Company would have derivedfrom such an augmentation of their military force as these troopsconstituted, ready to act on any emergency, prepared and disciplinedwithout any charge on the Company, as the institution professed, untiltheir actual services should be required, I have observed some evilsgrowing out of the system, which, in my opinion, more thancounterbalanced those advantages, had they been realized in theirfullest effect. The remote stations of these troops, placing thecommanding officers beyond the notice and control of the board, affordedtoo much opportunity and temptation for unwarrantable emoluments, andexcited the contagion of peculation and rapacity throughout the wholearmy. A most remarkable and incontrovertible proof of the prevalence ofthis spirit has been seen in the court-martial upon Captain Erskine, where the court, composed of officers of rank and respectablecharacters, unanimously and honorably, most honorably, acquitted himupon an acknowledged fact which in times of stricter discipline wouldhave been deemed a crime deserving the severest punishment. "

I will now call your Lordships' attention to another extract from thesame comment of Mr. Hastings, with respect to the removal of theCompany's servants, civil and military, from the court and service ofthe Vizier. 

"I was actuated solely by motives of justice to him and a regard to thehonor of our national character. In removing those gentlemen I diminishmy own influence, as well as that of my colleagues, by narrowing theline of patronage; and I expose myself to obloquy and resentment fromthose who are immediately affected by the arrangement, and the longtrain of their friends and powerful patrons. But their numbers, theirinfluence, and the enormous amount of their salaries, pensions, andemoluments, were an intolerable burden on the revenues and authority ofthe Vizier, and exposed us to the envy and resentment of the wholecountry, by excluding the native servants and adherents of the Vizierfrom the rewards of their services and attachment. "

My Lords, you have here Mr. Hastings's opinion of the whole militaryservice. You have here the authority and documents by which he supportshis opinion. He states that the contagion of peculation had tainted allthe frontier stations, which contain much the largest part of theCompany's army. He states that this contagion had tainted the wholearmy, _everywhere:_ so that, according to him, there was, throughout theIndian army, an universal taint of peculation. My Lords, peculation isnot a military vice. Insubordination, want of attention to duty, want oforder, want of obedience and regularity, are military vices; but whoever before heard of peculation being a military vice? In the casebefore you, it became so by employing military men as farmers ofrevenue, as masters of markets and of gunges. This departure from themilitary character and from military duties introduced that peculationwhich tainted the army, and desolated the dominions of the Nabob Vizier. 

I declare, when I first read the passage which has been just read toyour Lordships, in the infancy of this inquiry, it struck me withastonishment 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 depravedspirit, to a degree which tainted even their judicial character. This, my Lords, is a most serious matter. The judicial functions of militarymen are of vast importance in themselves; and, generally speaking, thereis not any tribunal whose members are more honorable in their conductand more just in their decisions than those of a court-martial. Perhapsthere is not a tribunal in this country whose reputation is really moreuntainted than that of a court-martial. It stands as fair, in theopinion both of the army and of the public, as any tribunal, in acountry where _all_ tribunals stand fair. But in India, this unnaturalvice of peculation, which has no more to do with the vices of a militarycharacter than with its virtues, this venomous spirit, has pervaded themembers of military tribunals to such an extent, that they acquit, honorably acquit, _most_ honorably acquit a man, "upon an acknowledgedfact which in times of stricter discipline would have been deemed acrime deserving the severest punishment. "

Who says all this, my Lords? Do I say it? No: it is Warren Hastings whosays it. He records it. He gives you his vouchers and his evidence, andhe 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 hasdeclared them to be so tainted with peculation, from head to foot, as tohave been induced to commit the most wicked perjuries, for the purposeof bearing one another out in their abominable peculations. In thisunnatural state of things, and whilst there is not one military man onthese stations of whom Mr. Hastings does not give this abominablyflagitious character, yet every one of them have joined to give him thebenefit of their testimony for his honorable intentions and conduct. 

In this tremendous scene, which he himself exposes, are there no signsof this captain-generalship which I have alluded to? Are there no signsof this man's being a captain-general of iniquity, under whom all thespoilers of India were paid, disciplined, and supported? I not onlycharge him with being guilty of a thousand crimes, but I assert thatthere is not a soldier or a civil servant in India whose culpable actsare not owing to this man's example, connivance, and protection. Everything which goes to criminate them goes directly against theprisoner. He puts them in a condition to plunder; he suffered no nativeauthority or government to restrain them; and he never called a man toan account for these flagitious acts which he has thought proper tobring before his country in the most solemn manner and upon the mostsolemn occasion. 

I verily believe, in my conscience, his accusation is not true, in theexcess, in the generality and extravagance in which he charges it. Thatit is true in a great measure we cannot deny; and in that measure we, inour turn, charge him with being the author of all the crimes which hedenounces; and if there is anything in the charge beyond the truth, itis he who is to answer for the falsehood. 

I will now refer your Lordships to his opinion of the civil service, asit is declared and recorded in his remarks upon the removal of theCompany's civil servants by him from the service of the Vizier. --"Iwas, " says he, "actuated solely by motives of justice to him [the Nabobof 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 theCompany had destroyed the national character, and that therefore theyought to be recalled. --"By removing these people, " he adds, "I diminishmy patronage. "--But I ask, How came they there? Why, through thispatronage. He sent them there to suck the blood which the military hadspared. He sent these civil servants to do ten times more mischief thanthe military ravagers could do, because they were invested with greaterauthority. --"If, " says he, "I recall them from thence, I lessen mypatronage. "--But who, my Lords, authorized him to become a patron? Whatlaws of his country justified him in forcing upon the Vizier the civilservants of the Company? What treaty authorized him to do it? Whatsystem of policy, except his own wicked, arbitrary system, authorizedhim to act thus?

He proceeds to say, "I expose myself to obloquy and resentment fromthose who are immediately affected by the arrangement, and the longtrain of their friends and powerful patrons. "--My Lords, it is theconstant burden of his song, that he cannot do his duty, that he isfettered in everything, that he fears a thousand mischiefs to happen tohim, --not from his acting with carefulness, economy, frugality, and inobedience to the laws of his country, but from the very reverse of allthis. Says he, "I am afraid I shall forfeit the favor of the powerfulpatrons of those servants in England, namely, the Lords and Commons ofEngland, if I do justice to the suffering people of this country. "

In the House of Commons there are undoubtedly powerful people who may besupposed to be influenced by patronage; but the higher and more powerfulpart of the country is more directly represented by your Lordships thanby us, although we have of the first blood of England in the House ofCommons. We do, indeed, represent, by the knights of the shires, thelanded interest; by our city and borough members we represent thetrading interest; we represent the whole people of England collectively. But neither blood nor power is represented so fully in the House ofCommons as that order which composes the great body of the people, --theprotection of which is our peculiar duty, and to which it is our gloryto adhere. But the dignities of the country, the great and powerful, arerepresented eminently by your Lordships. As we, therefore, would keepthe lowest of the people from the contagion and dishonor of peculationand corruption, and above all from exercising that vice which, amongcommoners, is unnatural as well as abominable, the vice of tyranny andoppression, so we trust that your Lordships will clear yourselves andthe higher and more powerful ranks from giving the smallest countenanceto the system which we have done our duty in denouncing and bringingbefore you. 

My Lords, you have heard the account of the civil service. Think oftheir numbers, think of their influence, and the enormous amount oftheir salaries, pensions, and emoluments! They were, you have heard, anintolerable burden on the revenues and authority of the Vizier; and theyexposed us to the envy and resentment of the whole country, by excludingthe native servants and adherents of the prince from the just reward oftheir services and attachments. Here, my Lords, is the whole civilservice brought before you. They usurp the country, they destroy therevenues, they overload the prince, and they exclude all the nobilityand eminent persons of the country from the just reward of theirservice. 

Did Mr. Francis, whom I saw here a little while ago, send these peopleinto that country? Did General Clavering, or Colonel Monson, whom hecharges with this system, send them there? No, they were sent byhimself; and if one was sent by anybody else for a time, he was soonrecalled: so that he is himself answerable for all the peculation whichhe attributes to the civil service. You see the character given of thatservice; you there see their accuser, you there see their defender, who, after having defamed both services, military and civil, never punishedthe 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 defamerof the service. I defy the ingenuity of man to show that the honor ofGreat Britain has not been tarnished under his patronage. He engaged toremove all these bloodsuckers by the treaty of Chunar; but he neverexecuted that treaty. He proposed to take away the temporary brigade;but he again established it. He redressed no grievance; he formed noimprovements in the government; he never attempted to provide a remedywithout increasing the evil tenfold. He was the primary and sole causeof all the grievances, civil and military, to which the unhappy nativesof that country were exposed; and he was the accuser of all theimmediate authors of those grievances, without having punished any oneof them. He is the accuser of them all. But the only person whom heattempted to punish was that man who dared to assert the authority ofthe Court of Directors, and to claim an office assigned to him by them. 

I will now read to your Lordships the protest of General Claveringagainst the military brigade. --"Taking the army from the Nabob is aninfringement of the rights of an independent prince, leaving only thename and title of it without the power. It is taking his subjects fromhim, against every law of Nature and of nations. "

I will next read to your Lordships a minute of Mr. Francis's. --"By theforegoing letter from Mr. Middleton it appears that he has taken thegovernment of the Nabob's dominions directly upon himself. I was not aparty to the resolutions which preceded that measure, and will not beanswerable for the consequences of it. "

The next paper I will read is one introduced by the Managers, to provethat a representation was made by the Nabob respecting the expenses ofthe gentlemen resident at his court, and written after the removalbefore 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, andengaged to recall these gentlemen, was so afraid of their powerfulfriends and patrons here, that he left India, and left all that load ofobloquy upon his successors. He left a Major Palmer there, in the placeof a Resident: a Resident of his own, as your Lordships must see; forMajor Palmer was no Resident of the Company's. This man received asalary of about 23, 000_l. _ a year, which he declared to be less than hisexpenses; by which we may easily judge of the enormous salaries of thosewho make their fortunes there. He was left by Mr. Hastings as hisrepresentative of peculation, his representative of tyranny. He was thesecond agent appointed to control all power ostensible and unostensible, and to head these gentlemen whose "custom, " the Nabob says, "was in theend to ask for money. " Money they must have; and there, my Lords, is thewhole secret. 

 * * * * *

I have this day shown your Lordships the entire dependence of Oude onthe 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 creatureof his own, --how he made the servants of the Company dependent on hisown arbitrary will, and considered independence a proof of corruption. It has been likewise proved to your Lordships that he suffered the armyto become an instrument of robbery and oppression, and one of itsofficers to be metamorphosed into a farmer-general to waste the countryand embezzle its revenues. You have seen a clandestine and fraudulentsystem, occasioning violence and rapine; and you have seen the prisonerat the bar acknowledging and denouncing an abandoned spirit of rapacitywithout bringing its ministers to justice, and pleading as his excusethe fear of offending your Lordships and the House of Commons. We haveshown you the government, revenue, commerce, and agriculture of Ouderuined and destroyed by Mr. Hastings and his creatures. And to wind upall, we have shown you an army so corrupted as to pervert thefundamental principles of justice, which are the elements and basis ofmilitary discipline. All this, I say, we have shown you; and I cannotbelieve that your Lordships will consider that we have trifled with yourtime, or strained our comments one jot beyond the strict measure of thetext. We have shown you a horrible scene, arising from an astonishingcombination of horrible circumstances. The order in which you willconsider these circumstances must be left to your Lordships. 

At present I am not able to proceed further. My next attempt will be tobring before you the manner in which Mr. Hastings treated movable andimmovable property in Oude, and by which he has left nothing undestroyedin that devoted country. 

END OF VOL. XI.