The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12)

1789, May 21.—Pa. 730.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question, in the negative,—and gave his reasons.

1789, May 27.—Pa. 771.Fourth

Question.—Whether the public accounts of the Nizamut and Bhela, under the seal of the Begum, attested also by the Nabob, and transmitted by Mr. Goring to the Board of Council at Calcutta, in a letter bearing date the 29th June, 1775, received by them, recorded without objection on the part of Mr. Hastings, and transmitted by him likewise without objection to the Court of Directors, and alleged to contain accounts of money received by Mr. Hastings,—and it being in proof, that Mr. Hastings, on the 11th of May, 1778, moved the Board to comply with the requisitions of the Nabob Mobarek ul Dowlah to reappoint the Munny Begum and Rajah Gourdas (who made up those accounts) to the respective offices they before filled, and which was accordingly resolved by the Board,—ought to be read?

1789, June 17.—Pa. 855.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question, in the negative,—and gave his reasons.

1789, June 24.—Pa. 922.Fifth

Question.—Whether the paper delivered by Sir Elijah Impey, on the 7th of July, 1775, in the Supreme Court, to the Secretary of the Supreme Council, in order to be transmitted to the Council as the resolution of the Court in respect to the claim made for Roy Rada Churn, on account of his being vakeel of the Nabob Mobarek ul Dowlah,—and which paper was the subject of the deliberation of the Council on the 31st July, 1775, Mr. Hastings being then present, and was by them transmitted to the Court of Directors, as a ground for such instructions from the Court of Directors as the occasion might seem to require,—may be admitted as evidence of the actual state and situation of the Nabob with reference to the English government?

1789, July 2.—Pa. 1001.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question, in the affirmative,—and gave his reasons.

1789, July 7.—Pa. 1030.Sixth

Question.—Whether it be or be not competent to the Managers for the Commons to give evidence upon the charge in the sixth article, to prove that the rent, at which the defendant, Warren Hastings, let the lands mentioned in the said sixth article of charge to Kelleram, fell into arrear and was deficient,—and whether, if proof were offered, that the rent fell in arrear immediately after the letting, the evidence would in that case be competent?

1790, April 22.—Pa. 364.

Answer.—The lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question,—"That it is not competent to the Managers for the Commons to give evidence upon the charge in the sixth article, to prove that the rent, at which the defendant, Warren Hastings, let the lands mentioned in the said sixth article of charge to Kelleram, fell into arrear and was deficient,"—and gave his reasons.

1790, April 27.—Pa. 388.Seventh

Question.—Whether it be competent for the Managers for the Commons to put the following question to the witness, upon the sixth article of charge, viz.: "What impression the letting of the lands to Kelleram and Cullian Sing made on the minds of the inhabitants of that country"?

1790, April 27.—Pa. 391.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question,—"That it is not competent to the Managers for the Commons to put the following question to the witness, upon the sixth article of charge, viz.: What impression, the letting of the lands to Kelleram and Cullian Sing made on the minds of the inhabitants of that country,"—and gave his reasons.

1790, April 29.—Pa. 413.Eighth

Question.—Whether it be competent to the Managers for the Commons to put the following question to the witness, upon the seventh article of charge, viz.: "Whether more oppressions did actually exist under the new institution than under the old"?

1790, April 29.—Pa. 415.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question,—"That it is not competent to the Managers for the Commons to put the following question to the witness, upon the seventh article of charge, viz.: Whether more oppressions did actually exist under the new institution than under the old,"—and gave his reasons.

1790, May 4.—Pa. 428.Ninth

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

1790, May 20.—Pa. 557.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question,—"That it is not competent for the Managers on the part of the Commons to give any evidence on the seventh article of impeachment, to prove that the letter of the 5th of May, 1781, is false in any other particular than that wherein it is expressly charged to be false,"—and gave his reasons.

1790, June 2.—Pa. 634.Tenth

Question.—Whether it be competent to the Managers for the Commons to examine the witness to any account of the debate which was had on the 9th day of July, 1778, previous to the written minutes that appear upon the Consultation of that date?

1794, February 25.—Lords' Minutes.

Answer.—The Lord Chief-Justice of the Court of Common Pleas delivered the unanimous opinion of the Judges upon the said question,—"That it is not competent to the Managers for the Commons to examine the witness, Philip Francis, Esquire, to any account of the debate which was had on the 9th day of July, 1778, previous to the written minutes that appear upon the Consultation of that date,"—and gave his reasons.

1794, February 27.—Lords' Minutes.Eleventh

Question.—Whether it is competent for the Managers for the Commons, in reply, to ask the witness, whether, between the time of the original demand being made upon Cheyt Sing and the period of the witness's leaving Bengal, it was at any time in his power to have reversed or put a stop to the demand upon Cheyt Sing,—the same not being relative to any matter originally given in evidence by the defendant?

1794, February 27.—Lords' Minutes.

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

1794, March 1.—Lords' Minutes.Twelfth

Question.—Whether a paper, read in the Court of Directors on the 4th of November, 1783, and then referred by them to the consideration of the Committee of the whole Court, and again read in the Court of Directors on the 19th of November, 1783, and amended and ordered by them to be published for the information of the Proprietors, can be received in evidence, in reply, to rebut the evidence, given by the defendant, of the thanks of the Court of Directors, signified to him on the 28th of June, 1785?

1794, March 1.—Lords' Minutes.

Answer.—Whereupon the Lord Chief-Justice of the Court of Common Pleas, having conferred with the rest of the Judges present, delivered their unanimous opinion upon the said question, in the negative,—and gave his reasons.

1794, March 1.—Lords' Minutes.

REMARKS IN VINDICATION OF THE PRECEDING REPORT

The preceding Report was ordered to be printed for the use of the members of the House of Commons, and was soon afterwards reprinted and published, in the shape of a pamphlet, by a London bookseller. In the course of a debate which took place in the House of Lords, on Thursday, the 22d of May, 1794, on the Treason and Sedition Bills, Lord Thurlow took occasion to mention "a pamphlet which his Lordship said was published by one Debrett, of Piccadilly, and which had that day been put into his hands, reflecting highly upon the Judges and many members of that House. This pamphlet was, he said, scandalous and indecent, and such as he thought ought not to pass unnoticed. He considered the vilifying and misrepresenting the conduct of judges and magistrates, intrusted with the administration of justice and the laws of the country, to be a crime of a very heinous nature, and most destructive in its consequences, because it tended to lower them in the opinion of those who ought to feel a proper reverence and respect for their high and important stations; and that, when it was stated to the ignorant or the wicked that their judges and magistrates were ignorant and corrupt, it tended to lessen their respect for and obedience to the laws themselves, by teaching them to think ill of those who administered them." On the next day Mr. Burke called the attention of the House of Commons to this matter, in a speech to the following effect.

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

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

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

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

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

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

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

SPEECHES IN THE IMPEACHMENT OF WARREN HASTINGS, ESQUIRE, LATE GOVERNOR-GENERAL OF BENGAL

SPEECH IN GENERAL REPLY.

MAY AND JUNE, 1794

FIRST DAY: WEDNESDAY, MAY 28, 1794

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

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

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

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

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

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

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