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Title: The Works of the Right Honourable Edmund Burke, Vol. XI. (of 12)
Author: Edmund Burke
Release Date: April 20, 2006 [EBook #18218]
Language: English
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THE WORKS
OF
THE RIGHT HONOURABLE
EDMUND BURKE
IN TWELVE VOLUMES
VOLUME THE ELEVENTH
[Illustration: Burke Coat of Arms.]
LONDON
JOHN C. NIMMO
14, KING WILLIAM STREET, STRAND, W.C.
MDCCCLXXXVII
CONTENTS OF VOL. XI.
PAGE
REPORT FROM THE COMMITTEE OF THE HOUSE OF COMMONS, APPOINTED TO
INSPECT THE LORDS' JOURNALS IN RELATION TO THEIR PROCEEDINGS ON
THE TRIAL OF WARREN HASTINGS, ESQUIRE. WITH AN APPENDIX. ALSO,
REMARKS IN VINDICATION OF THE SAME FROM THE ANIMADVERSIONS OF
LORD THURLOW. 1794. 1
SPEECHES IN THE IMPEACHMENT OF WARREN HASTINGS, ESQUIRE,
LATE GOVERNOR-GENERAL OF BENGAL. (CONTINUED.)
SPEECH IN GENERAL REPLY.
FIRST DAY: WEDNESDAY, MAY 28, 1794 157
SECOND DAY: FRIDAY, MAY 30 227
THIRD DAY: TUESDAY, JUNE 3 300
FOURTH DAY: THURSDAY, JUNE 5 372
REPORT
FROM THE
COMMITTEE OF THE HOUSE OF COMMONS,
APPOINTED
TO INSPECT THE LORDS' JOURNALS
IN RELATION TO THEIR PROCEEDINGS
ON THE TRIAL OF
WARREN HASTINGS, ESQUIRE.
WITH AN APPENDIX.
ALSO,
REMARKS IN VINDICATION OF THE SAME FROM THE ANIMADVERSIONS OF LORD
THURLOW.
1794.
NOTE.
In the sixth article Mr. Burke was supported, on the 16th of
February, 1790, by Mr. Anstruther, who opened the remaining part of
this article and part of the seventh article, and the evidence was
summed up and enforced by him. The rest of the evidence upon the
sixth, and on part of the seventh, eighth, and fourteenth articles,
were respectively opened and enforced by Mr. Fox and other of the
Managers, on the 7th and 9th of June, in the same session. On the
23d May, 1791, Mr. St. John opened the fourth article of charge; and
evidence was heard in support of the same. In the following sessions
of 1792, Mr. Hastings's counsel were heard in his defence, which was
continued through the whole of the sessions of 1793.
On the 5th of March, 1794, a select committee was appointed by the
House of Commons to inspect the Lords' Journals, in relation to
their proceeding on the trial of Warren Hastings, Esquire, and to
report what they found therein to the House, (which committee were
the managers appointed to make good the articles of impeachment
against the said Warren Hastings, Esquire,) and who were afterwards
instructed to report the several matters which had occurred since
the commencement of the prosecution, and which had, in their
opinion, contributed to the duration thereof to that time, with
their observations thereupon. On the 30th of April, the following
Report, written by Mr. Burke, and adopted by the Committee, was
presented to the House of Commons, and ordered by the House to be
printed.
REPORT
Made on the 30th April, 1794, from the Committee of the House of
Commons, appointed to inspect the Lords' Journals, in relation to
their proceeding on the trial of Warren Hastings, Esquire, and to
report what they find therein to the House (which committee were
the managers appointed to make good the articles of impeachment
against the said Warren Hastings, Esquire); and who were afterwards
instructed to report the several matters which have occurred since
the commencement of the said prosecution, and which have, in their
opinion, contributed to the duration thereof to the present time,
with their observations thereupon.
Your Committee has received two powers from the House:--The first, on
the 5th of March, 1794, to inspect the Lords' Journals, in relation to
their proceedings on the trial of Warren Hastings, Esquire, and to
report what they find therein to the House. The second is an
instruction, given on the 17th day of the same month of March, to this
effect: That your Committee do report to this House the several matters
which have occurred since the commencement of the said prosecution, and
which have, in their opinion, contributed to the duration thereof to the
present time, with their observations thereupon.
Your Committee is sensible that the duration of the said trial, and the
causes of that duration, as well as the matters which have therein
occurred, do well merit the attentive consideration of this House. We
have therefore endeavored with all diligence to employ the powers that
have been granted and to execute the orders that have been given to us,
and to report thereon as speedily as possible, and as fully as the time
would admit.
Your Committee has considered, first, the mere fact of the duration of
the trial, which they find to have commenced on the 13th day of
February, 1788, and to have continued, by various adjournments, to the
said 17th of March. During that period the sittings of the Court have
occupied one hundred and eighteen days, or about one third of a year.
The distribution of the sitting days in each year is as follows.
Days.
In the year 1788, the Court sat 35
1789, 17
1790, 14
1791, 5
1792, 22
1793, 22
1794, to the 1st of March, inclusive 3
----
Total 118
Your Committee then proceeded to consider the causes of this duration,
with regard to time as measured by the calendar, and also as measured by
the number of days occupied in actual sitting. They find, on examining
the duration of the trial with reference to the number of years which
it has lasted, that it has been owing to several prorogations and to one
dissolution of Parliament; to discussions which are supposed to have
arisen in the House of Peers on the legality of the continuance of
impeachments from Parliament to Parliament; that it has been owing to
the number and length of the adjournments of the Court, particularly the
adjournments on account of the Circuit, which adjournments were
interposed in the middle of the session, and the most proper time for
business; that it has been owing to one adjournment made in consequence
of a complaint of the prisoner against one of your Managers, which took
up a space of ten days; that two days' adjournments were made on account
of the illness of certain of the Managers; and, as far as your Committee
can judge, two sitting days were prevented by the sudden and unexpected
dereliction of the defence of the prisoner at the close of the last
session, your Managers not having been then ready to produce their
evidence in reply, nor to make their observations on the evidence
produced by the prisoner's counsel, as they expected the whole to have
been gone through before they were called on for their reply. In this
session your Committee computes that the trial was delayed about a week
or ten days. The Lords waited for the recovery of the Marquis
Cornwallis, the prisoner wishing to avail himself of the testimony of
that noble person.
With regard to the one hundred and eighteen days employed in actual
sitting, the distribution of the business was in the manner following.
There were spent,--
Days
In reading the articles of impeachment, and the
defendant's answer, and in debate on the mode
of proceeding 3
Opening speeches, and summing up by the Managers 19
Documentary and oral evidence by the Managers 51
Opening speeches and summing up by the defendant's
counsel, and defendant's addresses
to the Court 22
Documentary and oral evidence on the part of the
defendant 23
----
118
The other head, namely, that the trial has occupied one hundred and
eighteen days, or nearly one third of a year. This your Committee
conceives to have arisen from the following immediate causes. First, the
nature and extent of the matter to be tried. Secondly, the general
nature and quality of the evidence produced: it was principally
documentary evidence, contained in papers of great length, the whole of
which was often required to be read when brought to prove a single short
fact. Under the head of evidence must be taken into consideration the
number and description of the witnesses examined and cross-examined.
Thirdly, and principally, the duration of the trial is to be attributed
to objections taken by the prisoner's counsel to the admissibility of
several documents and persons offered as evidence on the part of the
prosecution. These objections amounted to sixty-two: they gave rise to
several debates, and to twelve references from the Court to the Judges.
On the part of the Managers, the number of objections was small; the
debates upon them were short; there was not upon them any reference to
the Judges; and the Lords did not even retire upon any of them to the
Chamber of Parliament.
This last cause of the number of sitting days your Committee considers
as far more important than all the rest. The questions upon the
admissibility of evidence, the manner in which these questions were
stated and were decided, the modes of proceeding, the great uncertainty
of the principle upon which evidence in that court is to be admitted or
rejected,--all these appear to your Committee materially to affect the
constitution of the House of Peers as a court of judicature, as well as
its powers, and the purposes it was intended to answer in the state. The
Peers have a valuable interest in the conservation of their own lawful
privileges. But this interest is not confined to the Lords. The Commons
ought to partake in the advantage of the judicial rights and privileges
of that high court. Courts are made for the suitors, and not the suitors
for the court. The conservation of all other parts of the law, the whole
indeed of the rights and liberties of the subject, ultimately depends
upon the preservation of the Law of Parliament in its original force and
authority.
Your Committee had reason to entertain apprehensions that certain
proceedings in this trial may possibly limit and weaken the means of
carrying on any future impeachment of the Commons. As your Committee
felt these apprehensions strongly, they thought it their duty to begin
with humbly submitting facts and observations on the proceedings
concerning evidence to the consideration of this House, before they
proceed to state the other matters which come within the scope of the
directions which they have received.
To enable your Committee the better to execute the task imposed upon
them in carrying on the impeachment of this House, and to find some
principle on which they were to order and regulate their conduct
therein, they found it necessary to look attentively to the jurisdiction
of the court in which they were to act for this House, and into its laws
and rules of proceeding, as well as into the rights and powers of the
House of Commons in their impeachments.
RELATION OF THE JUDGES, ETC., TO THE COURT OF PARLIAMENT.
Upon examining into the course of proceeding in the House of Lords, and
into the relation which exists between the Peers, on the one hand, and
their attendants and assistants, the Judges of the Realm, Barons of the
Exchequer of the Coif, the King's learned counsel, and the Civilians
Masters of the Chancery, on the other, it appears to your Committee that
these Judges, and other persons learned in the Common and Civil Laws,
are no integrant and necessary part of that court. Their writs of
summons are essentially different; and it does not appear that they or
any of them have, or of right ought to have, a deliberative voice,
either actually or virtually, in the judgments given in the High Court
of Parliament. Their attendance in that court is solely ministerial; and
their answers to questions put to them are not to be regarded as
declaratory of the Law of Parliament, but are merely consultory
responses, in order to furnish such matter (to be submitted to the
judgment of the Peers) as may be useful in reasoning by analogy, so far
as the nature of the rules in the respective courts of the learned
persons consulted shall appear to the House to be applicable to the
nature and circumstances of the case before them, and no otherwise.[1]
JURISDICTION OF THE LORDS.
Your Committee finds, that, in all impeachments of the Commons of Great
Britain for high crimes and misdemeanors before the Peers in the High
Court of Parliament, the Peers are not triers or jurors only, but, by
the ancient laws and constitution of this kingdom, known by constant
usage, are judges both of law and fact; and we conceive that the Lords
are bound not to act in such a manner as to give rise to an opinion that
they have virtually submitted to a division of their legal powers, or
that, putting themselves into the situation of mere triers or jurors,
they may suffer the evidence in the cause to be produced or not produced
before them, according to the discretion of the judges of the inferior
courts.
LAW OF PARLIAMENT.
Your Committee finds that the Lords, in matter of appeal or impeachment
in Parliament, are not of right obliged to proceed according to the
course or rules of the Roman Civil Law, or by those of the law or usage
of any of the inferior courts in Westminster Hall, but by the law and
usage of Parliament. And your Committee finds that this has been
declared in the most clear and explicit manner by the House of Lords, in
the year of our Lord 1387 and 1388, in the 11th year of King Richard II.
Upon an appeal in Parliament then depending against certain great
persons, peers and commoners, the said appeal was referred to the
Justices, and other learned persons of the law. "At which time," it is
said in the record, that "the Justices and Serjeants, and others the
learned in the Law Civil, were charged, by order of the King our
sovereign aforesaid, to give their faithful counsel to the Lords of the
Parliament concerning the due proceedings in the cause of the appeal
aforesaid. The which Justices, Serjeants, and the learned in the law of
the kingdom, and also the learned in the Law Civil, have taken the same
into deliberation, and have answered to the said Lords of Parliament,
that they had seen and well considered the tenor of the said appeal; and
they say that the same appeal was neither made nor pleaded according to
the order which the one law or the other requires. Upon which the said
Lords of Parliament have taken the same into deliberation and
consultation, and by the assent of our said Lord the King, and of their
common agreement, it was declared, that, in so high a crime as that
which is charged in this appeal, which touches the person of our lord
the King, and the state of the whole kingdom, perpetrated by persons who
are peers of the kingdom, along with others, the cause shall not be
tried in any other place but in Parliament, nor by any other law than
the law and course of Parliament; and that it belongeth to the Lords of
Parliament, and to their franchise and liberty by the ancient custom of
the Parliament, to be judges in such cases, and in these cases to judge
by the assent of the King; and thus it shall be done in this case, by
the award of Parliament: because the realm of England has not been
heretofore, nor is it the intention of our said lord the King and the
Lords of Parliament that it ever should be governed by the Law Civil;
and also, it is their resolution not to rule or govern so high a cause
as this appeal is, which cannot be tried anywhere but in Parliament, as
hath been said before, by the course, process, and order used in any
courts or place inferior in the same kingdom; which courts and places
are not more than the executors of the ancient laws and customs of the
kingdom, and of the ordinances and establishments of Parliament. It was
determined by the said Lords of Parliament, by the assent of our said
lord the King, that this appeal was made and pleaded well and
sufficiently, and that the process upon it is good and effectual,
according to the law and course of Parliament; and for such they decree
and adjudge it."[2]
And your Committee finds, that toward the close of the same Parliament
the same right was again claimed and admitted as the special privilege
of the Peers, in the following manner:--"In this Parliament, all the
Lords then present, Spiritual as well as Temporal, claimed as their
franchise, that the weighty matters moved in this Parliament, and which
shall be moved in other Parliaments in future times, touching the peers
of the land, shall be managed, adjudged, and discussed by the course of
Parliament, and in no sort by the Law Civil, or by the common law of the
land, used in the other lower courts of the kingdom; which claim,
liberty, and franchise the King graciously allowed and granted to them
in full Parliament."[2]
Your Committee finds that the Commons, having at that time considered
the appeal above mentioned, approved the proceedings in it, and, as far
as in them lay, added the sanction of their accusation against the
persons who were the objects of the appeal. They also, immediately
afterwards, impeached all the Judges of the Common Pleas, the Chief
Baron of the Exchequer, and other learned and eminent persons, both
peers and commoners; upon the conclusion of which impeachments it was
that the second claim was entered. In all the transactions aforesaid the
Commons were acting parties; yet neither then nor ever since have they
made any objection or protestation, that the rule laid down by the Lords
in the beginning of the session of 1388 ought not to be applied to the
impeachments of commoners as well as peers. In many cases they have
claimed the benefit of this rule; and in all cases they have acted, and
the Peers have determined, upon the same general principles. The Peers
have always supported the same franchises; nor are there any precedents
upon the records of Parliament subverting either the general rule or the
particular privilege, so far as the same relates either to the course of
proceeding or to the rule of law by which the Lords are to judge.
Your Committee observes also, that, in the commissions to the several
Lords High Stewards who have been appointed on the trials of peers
impeached by the Commons, the proceedings are directed to be had
according to the law and custom of the kingdom, _and the custom of
Parliament_: which words are not to be found in the commissions for
trying upon indictments.
"As every court of justice," says Lord Coke, "hath laws and customs for
its direction, some by the Common Law, some by the Civil and Canon Law,
some by peculiar laws and customs, &c., so the High Court of Parliament
_suis propriis legibus et consuetudinibus subsistit_. It is by the _Lex
et Consuetudo Parliamenti_, that all weighty matters in any Parliament
moved, concerning the peers of the realm, or Commons in Parliament
assembled, ought to be determined, adjudged, and discussed, by the
course of the Parliament, and not by the Civil Law, nor yet by the
common laws of this realm used in more inferior courts." And after
founding himself on this very precedent of the 11th of Richard II., he
adds, _"This is the reason that Judges ought not to give any opinion of
a matter of Parliament, because it is not to be decided by the common
laws, but secundum Legem et Consuetudinem Parliamenti: and so the Judges
in divers Parliaments have confessed!"_[3]
RULE OF PLEADING.
Your Committee do not find that any rules of pleading, as observed in
the inferior courts, have ever obtained in the proceedings of the High
Court of Parliament, in a cause or matter in which the whole procedure
has been within their original jurisdiction. Nor does your Committee
find that any demurrer or exception, as of false or erroneous pleading,
hath been ever admitted to any impeachment in Parliament, as not coming
within the form of the pleading; and although a reservation or protest
is made by the defendant (matter of form, as we conceive) "to the
generality, uncertainty, and insufficiency of the articles of
impeachment," yet no objections have in fact been ever made in any part
of the record; and when verbally they have been made, (until this
trial,) they have constantly been overruled.
The trial of Lord Strafford[4] is one of the most important eras in the
history of Parliamentary judicature. In that trial, and in the
dispositions made preparatory to it, the process on impeachments was, on
great consideration, research, and selection of precedents, brought very
nearly to the form which it retains at this day; and great and important
parts of Parliamentary Law were then laid down. The Commons at that time
made new charges or amended the old as they saw occasion. Upon an
application from the Commons to the Lords, that the examinations taken
by their Lordships, at their request, might be delivered to them, for
the purpose of a more exact specification of the charge they had made,
on delivering the message of the Commons, Mr. Pym, amongst other things,
said, as it is entered in the Lords' Journals, "According to the clause
of reservation in the conclusion of their charge, they [the Commons]
will add to the charges, not to the matter in respect of comprehension,
extent, or kind, but only to reduce them to more particularities, that
the Earl of Strafford might answer with the more clearness and
expedition: _not that they are bound by this way of SPECIAL charge; and
therefore they have taken care in their House, upon protestation, that
this shall be no prejudice to bind them from proceeding in GENERAL in
other cases, and that they are not to be ruled by proceedings in other
courts, which protestation they have made for the preservation of the
power of Parliament; and they desire that the like care may be had in
your Lordships' House_."[5] This protestation is entered on the Lords'
Journals. Thus careful were the Commons that no exactness used by them
for a temporary accommodation, should become an example derogatory to
the larger rights of Parliamentary process.
At length the question of their being obliged to conform to any of the
rules below came to a formal judgment. In the trial of Dr. Sacheverell,
March 10th, 1709, the Lord Nottingham "desired their Lordships' opinion,
whether he might propose a question to the Judges _here_ [in Westminster
Hall]. Thereupon the Lords, being moved to adjourn, adjourned to the
House of Lords, and on debate," as appears by a note, "it was agreed
that the question should be proposed in Westminster Hall."[6]
Accordingly, when the Lords returned the same day into the Hall, the
question was put by Lord Nottingham, and stated to the Judges by the
Lord Chancellor: "Whether, by the _law of England_, and constant
practice in all prosecutions by _indictment and information_ for crimes
and misdemeanors by writing or speaking, the particular words supposed
to be written or spoken must not be expressly specified in the
indictment or information?" On this question the Judges, _seriatim_, and
in open court, delivered their opinion: the substance of which was,
"That, by the laws of England, and the constant practice in Westminster
Hall, the words ought to be expressly specified in the indictment or
information." Then the Lords adjourned, and did not come into the Hall
until the 20th. In the intermediate time they came to resolutions on the
matter of the question put to the Judges. Dr. Sacheverell, being found
guilty, moved in arrest of judgment upon two points. The first, which he
grounded on the opinion of the Judges, and which your Committee thinks
most to the present purpose, was, "That no entire clause, or sentence,
or expression, in either of his sermons or dedications, is particularly
set forth in his impeachment, which he has already heard the Judges
declare to be necessary in all cases of indictments or informations."[7]
On this head of objection, the Lord Chancellor, on the 23d of March,
agreeably to the resolutions of the Lords of the 14th and 16th of March,
acquainted Dr. Sacheverell, "That, on occasion of the question before
put to the Judges _in Westminster Hall_, and their answer thereto, their
Lordships had fully debated and considered of that matter, and had come
to the following resolution: 'That this House will proceed to the
determination of the impeachment of Dr. Henry Sacheverell, according to
the _law of the land, and the law and usage of Parliament_.' And
afterwards to this resolution: 'That, by _the law and usage of
Parliament_ in prosecutions for high crimes and misdemeanors by writing
or speaking, the particular words supposed to be criminal are _not
necessary_ to be expressly specified in such impeachment.' So that, in
their Lordships' opinion, the law and usage of the High Court of
Parliament being _a part of the law of the land_, and that usage not
requiring that words should be exactly specified in impeachments, the
answer of the Judges, which related only to the course of _indictments
and informations_, does not in the least affect your case."[8]
On this solemn judgment concerning the law and usage of Parliament, it
is to be remarked: First, that the impeachment itself is not to be
presumed inartificially drawn. It appears to have been the work of some
of the greatest lawyers of the time, who were perfectly versed in the
manner of pleading in the courts below, and would naturally have
imitated their course, if they had not been justly fearful of setting an
example which might hereafter subject the plainness and simplicity of a
Parliamentary proceeding to the technical subtilties of the inferior
courts. Secondly, that the question put to the Judges, and their answer,
were strictly confined to the law and practice below; and that nothing
in either had a tendency to their delivering an opinion concerning
Parliament, its laws, its usages, its course of proceeding, or its
powers. Thirdly, that the motion in arrest of judgment, grounded on the
opinion of the Judges, was made only by Dr. Sacheverell himself, and not
by his counsel, men of great skill and learning, who, if they thought
the objections had any weight, would undoubtedly have made and argued
them.
Here, as in the case of the 11th King Richard II., the Judges declared
unanimously, that such an objection would be fatal to such a pleading in
any indictment or information; but the Lords, as on the former occasion,
overruled this objection, and held the article to be good and valid,
notwithstanding the report of the Judges concerning the mode of
proceeding in the courts below.
Your Committee finds that a protest, with reasons at large, was entered
by several lords against this determination of their court.[9] It is
always an advantage to those who protest, that their reasons appear upon
record; whilst the reasons of the majority, who determine the question,
do not appear. This would be a disadvantage of such importance as
greatly to impair, if not totally to destroy, the effect of precedent as
authority, if the reasons which prevailed were not justly presumed to be
more valid than those which have been obliged to give way: the former
having governed the final and conclusive decision of a competent court.
But your Committee, combining the fact of this decision with the early
decision just quoted, and with the total absence of any precedent of an
objection, before that time or since, allowed to pleading, or what has
any relation to the rules and principles of pleading, as used in
Westminster Hall, has no doubt that the House of Lords was governed in
the 9th of Anne by the very same principles which it had solemnly
declared in the 11th of Richard II.
But besides the presumption in favor of the reasons which must be
supposed to have produced this solemn judgment of the Peers, contrary to
the practice of the courts below, as declared by all the Judges, it is
probable that the Lords were unwilling to take a step which might admit
that anything in that practice should be received as their rule. It must
be observed, however, that the reasons against the article alleged in
the protest were by no means solely bottomed in the practice of the
courts below, as if the main reliance of the protesters was upon that
usage. The protesting minority maintained that it was not agreeable to
_several precedents in Parliament_; of which they cited many in favor
of their opinion. It appears by the Journals, that the clerks were
ordered to search for precedents, and a committee of peers was appointed
to inspect the said precedents, and to report upon them,--and that they
did inspect and report accordingly. But the report is not entered on the
Journals. It is, however, to be presumed that the greater number and the
better precedents supported the judgment. Allowing, however, their
utmost force to the precedents there cited, they could serve only to
prove, that, in the case of _words_, (to which alone, and not the case
of a _written_ libel, the precedents extended,) such a special averment,
according to the tenor of the words, had been used; but not that it was
necessary, or that ever any plea had been rejected upon such an
objection. As to the course of Parliament, resorted to for authority in
this part of the protest, the argument seems rather to affirm than to
deny the general proposition, that its own course, and not that of the
inferior courts, had been the rule and law of Parliament.
As to the objection, taken in the protest, drawn from natural right, the
Lords knew, and it appears in the course of the proceeding, that the
whole of the libel had been read at length, as appears from p. 655 to p.
666.[10] So that Dr. Sacheverell had _substantially_ the same benefit of
anything which could be alleged in the extenuation or exculpation as if
his libellous sermons had been entered _verbatim_ upon the recorded
impeachment. It was adjudged sufficient to state the crime _generally_
in the impeachment. The libels were given _in evidence_; and it was not
then thought of, that nothing should be given in evidence which was not
specially charged in the impeachment.
But whatever their reasons were, (great and grave they were, no doubt,)
such as your Committee has stated it is the _judgment_ of the Peers on
the Law of Parliament, as a part of the law of the land. It is the more
forcible as concurring with the judgment in the 11th of Richard II., and
with the total silence of the Rolls and Journals concerning any
objection to pleading ever being suffered to vitiate an impeachment, or
to prevent evidence being given upon it, on account of its generality,
or any other failure.
Your Committee do not think it probable, that, even before this
adjudication, the rules of pleading below could ever have been adopted
in a Parliamentary proceeding, when it is considered that the several
statutes of Jeofails, not less than twelve in number,[11] have been made
for the correction of an over-strictness in pleading, to the prejudice
of substantial justice: yet in no one of these is to be discovered the
least mention of any proceeding in Parliament. There is no doubt that
the legislature would have applied its remedy to that grievance in
Parliamentary proceedings, if it had found those proceedings embarrassed
with what Lord Mansfield, from the bench, and speaking of the matter of
these statutes, very justly calls "disgraceful subtilties."
What is still more strong to the point, your Committee finds that in the
7th of William III. an act was made for the regulating of trials for
treason and misprision of treason, containing several regulations for
reformation of proceedings at law, both as to matters of form and
substance, as well as relative to evidence. It is an act thought most
essential to the liberty of the subject; yet in this high and critical
matter, so deeply affecting the lives, properties, honors, and even the
inheritable blood of the subject, the legislature was so tender of the
high powers of this high court, deemed so necessary for the attainment
of the great objects of its justice, so fearful of enervating any of its
means or circumscribing any of its capacities, even by rules and
restraints the most necessary for the inferior courts, that they guarded
against it by an express proviso, "that neither this act, nor anything
therein contained, shall any ways extend to _any impeachment or other
proceedings in Parliament, in any land whatsoever_."[12]
CONDUCT OF THE COMMONS IN PLEADING.
This point being thus solemnly adjudged in the case of Dr. Sacheverell,
and the principles of the judgment being in agreement with the whole
course of Parliamentary proceedings, the Managers for this House have
ever since considered it as an indispensable duty to assert the same
principle, in all its latitude, upon all occasions on which it could
come in question,--and to assert it with an energy, zeal, and
earnestness proportioned to the magnitude and importance of the interest
of the Commons of Great Britain in the religious observation of the
rule, _that the Law of Parliament, and the Law of Parliament only,
should prevail in the trial of their impeachments_.
In the year 1715 (1 Geo. I.) the Commons thought proper to impeach of
high treason the lords who had entered into the rebellion of that
period. This was about six years after the decision in the case of
Sacheverell. On the trial of one of these lords, (the Lord Wintoun,[13])
after verdict, the prisoner moved in arrest of judgment, and excepted
against the impeachment for error, on account of the treason therein
laid "not being described with sufficient certainty,--the day on which
the treason was committed not having been alleged." His counsel was
heard to this point. They contended, "that the forfeitures in cases of
treason are very great, and therefore they humbly conceived that the
accusation ought to contain all the certainty it is capable of, that the
prisoner may not by _general allegations_ be rendered incapable to
defend himself in a case which may prove fatal to him: that they would
not trouble their Lordships with citing authorities; for they believed
there is not one gentleman of the long robe but will agree that an
indictment for any capital offence to be erroneous, if the offence be
not alleged to be committed on a certain day: that this impeachment set
forth only that in or about the months of September, October, or
November, 1715, the offence charged in the impeachment had been
committed." The counsel argued, "that a proceeding by impeachment is a
proceeding at the Common Law, for _Lex Parliamentaria_ is a part of
Common Law, and they submitted whether there is not the same certainty
required in one method of proceeding at Common Law as in another."
The matter was argued elaborately and learnedly, not only on the general
principles of the proceedings below, but on the inconvenience and
possible hardships attending this uncertainty. They quoted Sacheverell's
case, in whose impeachment "the precise days were laid when the Doctor
preached each of these two sermons; and that by a like reason a certain
day ought to be laid in the impeachment when this treason was committed;
and that the authority of Dr. Sacheverell's case seemed so much stronger
than the case in question as the crime of treason is higher than that of
a misdemeanor."
Here the Managers for the Commons brought the point a second time to an
issue, and that on the highest of capital cases: an issue, the event of
which was to determine forever whether their impeachments were to be
regulated by the law as understood and observed in the inferior courts.
Upon the usage below there was no doubt; the indictment would
unquestionably have been quashed. But the Managers for the Commons stood
forth upon this occasion with a determined resolution, and no less than
four of them _seriatim_ rejected the doctrine contended for by Lord
Wintoun's counsel. They were all eminent members of Parliament, and
three of them great and eminent lawyers, namely, the then
Attorney-General, Sir William Thomson, and Mr. Cowper.
Mr. Walpole said,--"Those learned gentlemen [Lord Wintoun's counsel]
_seem to forget in what court they are_. They have taken up so much of
your Lordships' time in quoting of authorities, and using arguments to
show your Lordships what would quash an indictment in _the courts
below_, that they seemed to forget they are now in _a Court of
Parliament, and on an impeachment of the Commons of Great Britain_. For,
should the Commons admit all that they have offered, it will not follow
that the impeachment of the Commons is insufficient; and I must observe
to your Lordships, that neither of the learned gentlemen have offered to
produce one instance relative to an impeachment. I mean to show that the
sufficiency of an impeachment was never called in question for the
generality of the charge, or that any instance of that nature was
offered at before. The Commons don't conceive, that, if this exception
would quash an indictment, it would therefore make the impeachment
insufficient. I hope it never will be allowed here as a reason, that
what quashes an indictment in the courts below will make insufficient an
impeachment brought by the Commons of Great Britain."
The Attorney-General supported Mr. Walpole in affirmance of this
principle. He said,--"I would follow the steps of the learned gentleman
who spoke before me, and I think he has given a good answer to these
objections. I would take notice that we are upon an impeachment, not
upon an indictment. The courts below have set forms to themselves, which
have prevailed for a long course of time, and thereby are become the
forms by which those courts are to govern themselves; but it never was
thought that the forms of those courts had any influence on the
proceedings of Parliament. In Richard II.'s time, it is said in the
records of Parliament, that proceedings in Parliament are not to be
governed by the forms of Westminster Hall. We are in the case of an
impeachment, and in the Court of Parliament. Your Lordships have already
given judgment against six upon this impeachment, and it is warranted by
the precedents in Parliament; therefore we insist that the articles are
good in substance."
Mr. Cowper.--"They [the counsel] cannot but know that the usages of
Parliaments are part of the laws of the land, although they differ in
many instances from the Common Law, as practised in the inferior courts,
in point of form. My Lords, if the Commons, in preparing articles of
impeachment, should govern themselves by precedents of indictments, in
my humble opinion they would depart from the ancient, nay, the constant,
usage and practice of Parliament. It is well known that the form of an
impeachment has very little resemblance to that of an indictment; and I
believe the Commons will endeavor to preserve the difference, by
adhering to their own precedents."
Sir William Thomson.--"We must refer to the forms and proceedings in the
Court of Parliament, and which must be owned to be part of the law of
the land. It has been mentioned already to your Lordships, that the
precedents in impeachments are not so nice and precise in form as in the
inferior courts; and we presume your Lordships will be governed by the
forms of your own court, (especially forms that are not essential to
justice,) as the courts below are by theirs: which courts differ one
from the other in many respects as to their forms of proceedings, and
the practice of each court is esteemed as the law of that court."
The Attorney-General in reply maintained his first doctrine. "There is
no uncertainty; in it _that can be to the prejudice of the prisoner_: we
insist, it is according to _the forms of Parliament_: he has pleaded to
it, and your Lordships have found him guilty."
The opinions of the Judges were taken in the House of Lords, on the 19th
of March, 1715, upon two questions which had been argued in arrest of
judgment, grounded chiefly on the practice of the courts below. To the
first the Judges answered,--"_It is necessary_ that there be a _certain_
day laid in such indictments, on which the fact is alleged to be
committed; and that alleging in such indictments that the fact was
committed at or about a certain day would not be sufficient." To the
second they answered, "that, although a day certain, when the fact is
supposed to be done, be alleged in such indictments, yet it is not
necessary upon the trial to prove the fact to be committed upon _that
day_; but it is sufficient, if proved to be done _on any other day
before_ the indictment found."
Then it was "agreed by the House, and ordered, that the Lord High
Steward be directed to acquaint the prisoner at the bar in Westminster
Hall, 'that the Lords have considered of the matters moved in arrest of
judgment, and are of opinion that they are not sufficient to arrest the
same, but that the _impeachment_ is sufficiently certain in point of
time _according to the form of impeachments in Parliament_.'"[14]
On this final adjudication, (given after solemn argument, and after
taking the opinion of the Judges,) in affirmance of the Law of
Parliament against the undisputed usage of the courts below, your
Committee has to remark,--1st, The preference of the custom of
Parliament to the usage below. By the very latitude of the charge, the
Parliamentary accusation gives the prisoner fair notice to prepare
himself upon all points: whereas there seems something insnaring in the
proceedings upon indictment, which, fixing the specification of a day
certain for the treason or felony as absolutely necessary in the
charge, gives notice for preparation only on _that day_, whilst the
prosecutor has the whole range of time antecedent to the indictment to
allege and give evidence of facts against the prisoner. It has been
usual, particularly in later indictments, to add, "at several other
times"; but the strictness of naming one day is still necessary, and the
want of the larger words would not quash the indictment. 2dly, A
comparison of the extreme rigor and exactness required in the more
_formal_ part of the proceeding (the indictment) with the extreme laxity
used in the _substantial_ part (that is to say, the evidence received to
prove the fact) fully demonstrates that the partisans of those forms
would put shackles on the High Court of Parliament, with which they are
not willing, or find it wholly impracticable, to bind themselves. 3dly,
That the latitude of departure from the letter of the indictment (which
holds in other matters besides this) is in appearance much more contrary
to natural justice than anything which has been objected against the
evidence offered by your Managers, under a pretence that it exceeded the
limits of pleading. For, in the case of indictments below, it must be
admitted that the prisoner may be unprovided with proof of an alibi, and
other material means of defence, or may find some matters unlooked-for
produced against him, by witnesses utterly unknown to him: whereas
nothing was offered to be given in evidence, under any of the articles
of this impeachment, except such as the prisoner must have had perfect
knowledge of; the whole consisting of matters sent over by himself to
the Court of Directors, and authenticated under his own hand. No
substantial injustice or hardship of any kind could arise from our
evidence under our pleading: whereas in theirs very great and serious
inconveniencies might happen.
Your Committee has further to observe, that, in the case of Lord
Wintoun, as in the case of Dr. Sacheverell, the Commons had in their
Managers persons abundantly practised in the law, as used in the
inferior jurisdictions, who could easily have followed the precedents of
indictments, if they had not purposely, and for the best reasons,
avoided such precedents.
A great writer on the criminal law, Justice Foster, in one of his
Discourses,[15] fully recognizes those principles for which your
Managers have contended, and which have to this time been uniformly
observed in Parliament. In a very elaborate reasoning on the case of a
trial in Parliament, (the trial of those who had murdered Edward II.,)
he observes thus:--"It is _well known_, that, in _Parliamentary_
proceedings of this kind, _it is, and ever was_, sufficient that matters
appear with proper light and certainty to _a common understanding_,
without that minute exactness which is required in criminal proceedings
in Westminster Hall. In these cases the rule has always been, _Loquendum
ut vulgus_." And in a note he says,--"In the proceeding against
Mortimer, in this Parliament, _so little regard was had to the forms
used in legal proceedings_, that he who had been frequently summoned to
Parliament as a baron, and had lately been created Earl of March, is
styled through the whole record merely Roger de Mortimer."
The departure from the common forms in the first case alluded to by
Foster (viz., the trial of Berkeley, Maltravers, &c., for treason, in
the murder of Edward II.[16]) might be more plausibly attacked, because
they were tried, though in Parliament, by a jury of freeholders: which
circumstance might have given occasion to justify a nearer approach to
the forms of indictments below. But no such forms were observed, nor in
the opinion of this able judge ought they to have been observed.
PUBLICITY OF THE JUDGES' OPINIONS.
It appears to your Committee, that, from the 30th year of King Charles
II. until the trial of Warren Hastings, Esquire, in all trials in
Parliament, as well upon impeachments of the Commons as on indictments
brought up by _Certiorari_, when any matter of law hath been agitated at
the bar, or in the course of trial hath been stated by any lord in the
court, it hath been the prevalent custom to state the same in open
court. Your Committee has been able to find, since that period, no more
than one precedent (and that a precedent rather in form than in
substance) of the opinions of the Judges being taken privately, except
when the case on both sides has been closed, and the Lords have retired
to consider of their verdict or of their judgment thereon. Upon the
soundest and best precedents, the Lords have improved on the principles
of publicity and equality, and have called upon the parties severally to
argue the matter of law, previously to a reference to the Judges, who,
on their parts, have afterwards, _in open court_, delivered their
opinions, often by the mouth of one of the Judges, speaking for himself
and the rest, and in their presence: and sometimes all the Judges have
delivered their opinion _seriatim_, (even when they have been unanimous
in it,) together with their reasons upon which their opinion had been
founded. This, from the most early times, has been the course in all
judgments in the House of Peers. Formerly even the record contained the
reasons of the decision. "The reason wherefore," said Lord Coke, "the
records of Parliaments have been so highly extolled is, that therein is
set down, in cases of difficulty, not only the judgment and resolution,
but _the reasons and causes of the same_ by so great advice."[17]
In the 30th of Charles II., during the trial of Lord Cornwallis,[18] on
the suggestion of a question in law to the Judges, Lord Danby demanded
of the Lord High Steward, the Earl of Nottingham, "whether it would be
proper here [in open court] to ask the question of your Grace, or to
propose it to the Judges?" The Lord High Steward answered,--"If your
Lordships doubt of anything whereon a question in law ariseth, the
latter opinion, and the _better_ for the prisoner, is, _that it must be
stated in the presence of the prisoner, that he may know whether the
question be truly put_. It hath _sometimes_ been practised otherwise,
and the Peers have sent for the Judges, and have asked their opinion in
private, and have come back, and have given their verdict according to
that opinion; and there is scarcely a precedent of its being otherwise
done. There is a later authority in print that doth settle the point so
as I tell you, and I do conceive _it ought to be followed_; and it
being safer for the prisoner, my humble opinion to your Lordship is,
that he ought to be present at _the stating of the question_. Call the
_prisoner_." The prisoner, who had withdrawn, again appearing, he
said,--"My Lord Cornwallis, my Lords the Peers, since they have
withdrawn, have conceived a doubt in some matter [of law arising upon
the matter] of fact in your case; and they have that tender regard of a
prisoner at the bar, _that they will not suffer a case to be put up in
his absence_, lest it should chance to prejudice him by being _wrong
stated_." Accordingly the question was both put and the Judges' answer
given publicly and in his presence.
Very soon after the trial of Lord Cornwallis, the impeachment against
Lord Stafford was brought to a hearing,--that is, in the 32d of Charles
II. In that case the lord at the bar having stated a point of law,
"touching the necessity of two witnesses to an overt act in case of
treason," the Lord High Steward told Lord Stafford, that "all the Judges
that assist them, _and are here in your Lordship's presence and
hearing_, should deliver their opinions whether it be doubtful and
disputable or not." Accordingly the Judges delivered their opinion, and
each argued it (though they were all agreed) _seriatim_ and _in open
court_. Another abstract point of law was also proposed from the bar, on
the same trial, concerning the legal sentence in high treason; and in
the same manner the Judges on reference delivered their opinion _in open
court_; and no objection, was taken to it as anything new or
irregular.[19]
In the 1st of James II. came on a remarkable trial of a peer,--the trial
of Lord Delamere. On that occasion a question of law was stated. There
also, in conformity to the precedents and principles given on the trial
of Lord Cornwallis, and the precedent in the impeachment of Lord
Stafford, the then Lord High Steward took care that the opinion of the
Judges should be given in open court.
Precedents grounded on principles so favorable to the fairness and
equity of judicial proceedings, given in the reigns of Charles II. and
James II., were not likely to be abandoned after the Revolution. The
first trial of a peer which we find after the Revolution was that of the
Earl of Warwick.
In the case of the Earl of Warwick, 11 Will. III., a question in law
upon evidence was put to the Judges; the statement of the question was
made in open court by the Lord High Steward, Lord Somers:--"If there be
six in company, and one of them is killed, the other five are afterwards
indicted, and three are tried and found guilty of manslaughter, and upon
their prayers have their clergy allowed, and the burning in the hand is
respited, but not pardoned,--whether any of the three can be a witness
on the trial of the other two?"
Lord Halifax.--"I suppose your Lordships will have the opinion of the
Judges upon this point: _and that must be in the presence of the
prisoner_."
Lord High Steward (Lord Somers).--"_It must certainly be in the presence
of the prisoner_, if you ask the Judges' opinions."[20]
In the same year, Lord Mohun was brought to trial upon an indictment for
murder. In this single trial a greater number of questions was put to
the Judges in matter of law than probably was ever referred to the
Judges in all the collective body of trials, before or since that
period. That trial, therefore, furnishes the largest body of authentic
precedents in this point to be found in the records of Parliament. The
number of questions put to the Judges in this trial was twenty-three.
They all originated from the Peers themselves; yet the Court called upon
the party's counsel, as often as questions were proposed to be referred
to the Judges, as well as on the counsel for the Crown, to argue every
one of them _before_ they went to those learned persons. Many of the
questions accordingly were argued at the bar at great length. The
opinions were given and argued _in open court_. Peers frequently
insisted that the Judges should give their opinions _seriatim_, which
they did always publicly in the court, with great gravity and dignity,
and greatly to the illustration of the law, as they held and acted upon
it in their own courts.[21]
In Sacheverell's case (just cited for another purpose) the Earl of
Nottingham demanded whether he might not propose a question of law to
the Judges _in open court_. It was agreed to; and the Judges gave their
answer _in open court_, though this was after verdict given: and in
consequence of the advantage afforded to the prisoner in hearing _the
opinion_ of the Judges, he was thereupon enabled to move in arrest of
judgment.
The next precedent which your Committee finds of a question put by the
Lords, sitting as a court of judicature, to the Judges, pending the
trial, was in the 20th of George II., when Lord Balmerino, who was tried
on an indictment for high treason, having raised a doubt whether the
evidence proved him to be at the place assigned for the overt act of
treason on the day laid in the indictment, the point was argued at the
bar by the counsel for the Crown in the prisoner's presence, and for his
satisfaction. The prisoner, on hearing the argument, waived his
objection; but the then Lord President moving their Lordships to adjourn
to the Chamber of Parliament, the Lords adjourned accordingly, and after
some time returning into Westminster Hall, the Lord High Steward (Lord
Hardwicke) said,--
"Your Lordships were pleased, in the Chamber of Parliament, to come to a
resolution that the opinion of the learned and reverend Judges should be
taken on the following question, namely, Whether it is necessary that an
overt act of high treason should be proved to have been committed on the
particular day laid in the indictment? Is it your Lordships' pleasure
that the Judges do now give their opinion on that question?"
Lords.--"Ay, ay."
Lord High Steward.--"My Lord Chief-Justice!"
Lord Chief-Justice (Lord Chief-Justice Lee).--"The question proposed by
your Lordships is, Whether it be necessary that an overt act of high
treason should be proved to be committed on the particular day laid in
the indictment? We are all of opinion that it is not necessary to prove
the overt act to be committed on the particular day laid in the
indictment; but as evidence may be given of an overt act before the day,
so it may be after the day specified in the indictment; for the day laid
is circumstance and form only, and not material in point of proof: this
is the known constant course of proceeding in trials."
Here the case was made for the Judges, for the satisfaction of one of
the Peers, after the prisoner had waived his objection. Yet it was
thought proper, as a matter of course and of right, that the Judges
should state the question put to them in the open court, and in presence
of the prisoner,--and that in the same open manner, and in the same
presence, their answer should be delivered.[22]
Your Committee concludes their precedents begun under Lord Nottingham,
and ended under Lord Hardwicke. They are of opinion that a body of
precedents so uniform, so accordant with principle, made in such times,
and under the authority of a succession of such great men, ought not to
have been departed from. The single precedent to the contrary, to which
your Committee has alluded above, was on the trial of the Duchess of
Kingston, in the reign of his present Majesty. But in that instance the
reasons of the Judges were, by order of the House, delivered in writing,
and entered at length on the Journals:[23] so that the legal principle
of the decision is equally to be found: which is not the case in any one
instance of the present impeachment.
The Earl of Nottingham, in Lord Cornwallis's case, conceived, though it
was proper and agreeable to justice, that this mode of putting questions
to the Judges and receiving their answer in public was not supported by
former precedents; but he thought a book of authority had declared in
favor of this course. Your Committee is very sensible, that, antecedent
to the great period to which they refer, there are instances of
questions having been put to the Judges privately. But we find the
_principle_ of publicity (whatever variations from it there might be in
practice) to have been so clearly established at a more early period,
that all the Judges of England resolved in Lord Morley's trial, in the
year 1666, (about twelve years before the observation of Lord
Nottingham,) _on a supposition that the trial should be actually
concluded, and the Lords retired to the Chamber of Parliament to consult
on their verdict_, that even in that case, (much stronger than the
observation of your Committee requires for its support,) if their
opinions should then be demanded by the Peers, for the information of
their private conscience, yet they determined that they should be given
in public. This resolution is in itself so solemn, and is so bottomed on
constitutional principle and legal policy, that your Committee have
thought fit to insert it _verbatim_ in their Report, as they relied upon
it at the bar of the Court, when they contended for the same publicity.
"It was resolved, that, in case the Peers who are triers, _after the
evidence given, and the prisoner withdrawn, and they gone to consult of
the verdict_, should desire to speak with any of the Judges, to have
their opinion upon any point of law, that, if the Lord Steward spoke to
us to go, we should go to them; but when the Lords asked us any
question, we should not deliver any private opinion, but let them know
_we were not to deliver any private opinion without conference with the
rest of the Judges, and that to be done openly in court; and this
(notwithstanding the precedent in the case of the Earl of Castlehaven)
was thought prudent in regard of ourselves, as well as for the avoiding
suspicion which might grow by private opinions: ALL resolutions of
Judges being ALWAYS done in public_."[24]
The Judges in this resolution overruled the authority of the precedent,
which militated against the whole spirit of their place and profession.
Their declaration was without reserve or exception, that "_all_
resolutions of the Judges are _always_ done in public." These Judges (as
should be remembered to their lasting honor) did not think it derogatory
from their dignity, nor from their duty to the House of Lords, to take
such measures concerning the publicity of their resolutions as should
secure them from suspicion. They knew that the mere circumstance of
privacy in a judicature, where any publicity is in use, tends to beget
suspicion and jealousy. Your Committee is of opinion that the honorable
policy of avoiding suspicion by avoiding privacy is not lessened by
anything which exists in the present time and in the present trial.
Your Committee has here to remark, that this learned Judge seemed to
think the case of Lord Audley (Castlehaven) to be more against him than
in truth it was. The precedents were as follow. The opinions of the
Judges were taken three times: the first time by the Attorney-General at
Serjeants' Inn, antecedent to the trial; the last time, after the Peers
had retired to consult on their verdict; the middle time _was during the
trial itself_: and here the opinion was taken in open court, agreeably
to what your Committee contends to have been the usage ever since this
resolution of the Judges.[25] What was done before seemed to have passed
_sub silentio_, and possibly through mere inadvertence.
Your Committee observes, that the precedents by them relied on were
furnished from times in which the judicial proceedings in Parliament,
and in all our courts, had obtained a very regular form. They were
furnished at a period in which Justice Blackstone remarks that more laws
were passed of importance to the rights and liberties of the subject
than in any other. These precedents lean all one way, and carry no marks
of accommodation to the variable spirit of the times and of political
occasions. They are the same before and after the Revolution. They are
the same through five reigns. The great men who presided in the
tribunals which furnished these examples were in opposite political
interests, but all distinguished for their ability, integrity, and
learning.
The Earl of Nottingham, who was the first on the bench to promulgate
this publicity as a rule, has not left us to seek the principle in the
case: that very learned man considers the publicity of the questions and
answers as a matter of justice, _and of justice favorable to the
prisoner_. In the case of Mr. Hastings, the prisoner's counsel did not
join your Committee in their endeavors to obtain the publicity we
demanded. Their reasons we can only conjecture. But your Managers,
acting for this House, were not the less bound to see that the due
Parliamentary course should be pursued, even when it is most favorable
to those whom they impeach. If it should answer the purposes of one
prisoner to waive the rights which belong to all prisoners, it was the
duty of your Managers to protect those general rights against that
particular prisoner. It was still more their duty to endeavor that their
_own_ questions should not be erroneously stated, or cases put which
varied from those which they argued, or opinions given in a manner not
supported by the spirit of our laws and institutions or by analogy with
the practice of all our courts.
Your Committee, much in the dark about a matter in which it was so
necessary that they should receive every light, have heard, that, in
debating this matter abroad, it has been objected, that many of the
precedents on which we most relied were furnished in the courts of the
Lord High Steward, and not in trials where the Peers were Judges,--and
that the Lord High Steward not having it in his power to retire with the
juror Peers, the Judges' opinions, from necessity, not from equity to
the parties, were given before that magistrate.
Your Committee thinks it scarcely possible that the Lords could be
influenced by such a feeble argument. For, admitting the fact to have
been as supposed, there is no sort of reason why so uniform a course of
precedents, in a legal court composed of a peer for judge and peers for
triers, a course so favorable to all parties and to equal justice, a
course in concurrence with the procedure of all our other courts, should
not have the greatest authority over their practice in every trial
before _the whole body_ of the peerage.
The Earl of Nottingham, who acted as High Steward in one of these
commissions, certainly knew what he was saying. He gave no such reason.
His argument for the publicity of the Judges' opinions did not turn at
all on the nature of his court, or of his office in that court. It
rested on the equity of the principle, and on the fair dealing due to
the prisoner.
Lord Somers was in no such court; yet his declaration is full as strong.
He does not, indeed, argue the point, as the Earl of Nottingham did,
when he considered it as a new case. Lord Somers considers it as a
point quite settled, and no longer standing in need of being supported
by reason or precedent.
But it is a mistake that the precedents stated in this Report are wholly
drawn from proceedings in that kind of court. Only two are cited which
are furnished from a court constituted in the manner supposed. The rest
were in trials by all the peers, and not by a jury of peers with an High
Steward.
After long discussions with the Peers on this subject, "the Lords'
committees in a conference told them (the committee of this House,
appointed to a conference on the matter) that the High Steward is but
Speaker _pro tempore_, and giveth his vote as well as the other lords:
this changeth not the nature of the court. And the Lords declared, that
they have power enough to proceed to trial, though the King should not
name an High Steward." On the same day, "it is declared and ordered by
the Lords Spiritual and Temporal in Parliament assembled, that the
office of High Steward on trials of peers upon impeachments is not
necessary to the House of Peers, but that the Lords may proceed in such
trials, if an High Steward is not appointed according to their humble
desire."[26]
To put the matter out of all doubt, and to remove all jealousy on the
part of the Commons, the commission of the Lord High Steward was then
altered.
These rights, contended for by the Commons in their impeachments, and
admitted by the Peers, were asserted in the proceedings preparatory to
the trial of Lord Stafford, in which that long chain of uniform
precedents with regard to the publicity of the Judges' opinions in
trials begins.
For these last citations, and some of the remarks, your Committee are
indebted to the learned and upright Justice Foster. They have compared
them with the Journals, and find them correct. The same excellent author
proceeds to demonstrate that whatever he says of trials by impeachment
is equally applicable to trials before the High Steward on indictment;
and consequently, that there is no ground for a distinction, with regard
to the public declaration of the Judges' opinions, founded on the
inapplicability of either of these cases to the other. The argument on
this whole matter is so satisfactory that your Committee has annexed it
at large to their Report.[27] As there is no difference in fact between
these trials, (especially since the act which provides that all the
peers shall be summoned to the trial of a peer,) so there is no
difference in the reason and principle of the publicity, let the matter
of the Steward's jurisdiction, be as it may.
PUBLICITY GENERAL.
Your Committee do not find any positive law which binds the judges of
the courts in Westminster Hall publicly to give a reasoned opinion from
the bench, in support of their judgment upon matters that are stated
before them. But the course hath prevailed from the oldest times. It
hath been so general and so uniform, that it must be considered as the
law of the land. It has prevailed, so far as we can discover, not only
in all the courts which now exist, whether of law or equity, but in
those which have been suppressed or disused, such as the Court of Wards
and the Star Chamber. An author quoted by Rushworth, speaking of the
constitution of that chamber, says,--"And so it was resolved _by the
Judges, on reference made to them; and their opinion, after deliberate
hearing, and view of former precedents, was published in open
court_."[28] It appears elsewhere in the same compiler that all their
proceedings were public, even in deliberating previous to judgment.
The Judges in their reasonings have always been used to observe on the
arguments employed by the counsel on either side, and on the authorities
cited by them,--assigning the grounds for rejecting the authorities
which they reject, or for adopting those to which they adhere, or for a
different construction of law, according to the occasion. This
publicity, not only of decision, but of deliberation, is not confined to
their several courts, whether of law or equity, whether above or at Nisi
Prius; but it prevails where they are assembled, in the Exchequer
Chamber, or at Serjeants' Inn, or wherever matters come before the
Judges collectively for consultation and revision. It seems to your
Committee to be moulded in the essential frame and constitution of
British judicature. Your Committee conceives that the English
jurisprudence has not any other sure foundation, nor, consequently, the
lives and properties of the subject any sure hold, but in the maxims,
rules, and principles, and juridical traditionary line of decisions
contained in the notes taken, and from time to time published, (mostly
under the sanction of the Judges,) called Reports.
In the early periods of the law it appears to your Committee that a
course still better had been pursued, but grounded on the same
principles; and that no other cause than the multiplicity of business
prevented its continuance. "Of ancient time," says Lord Coke, "in cases
of difficulties, either criminal or civil, _the reasons and causes_ of
the judgment were set down _upon the record_, and so continued in the
reigns of Ed. I. and Ed. II., and then there was no need of reports; but
in the reign of Ed. III. (when the law was in its height) the causes and
reasons of judgments, in respect of the multitude of them, are not set
down in the record, but then _the great casuists and reporters of cases_
(certain grave and sad men) published the cases, _and the reasons and
causes of the judgments or resolutions_, which, from the beginning of
the reign of Ed. III. and since, we have in print. But these also,
though of great credit and excellent use in their kind, _yet far
underneath the authority of the Parliament Rolls, reporting the acts,
judgments, and resolutions of that highest court_."[29]
Reports, though of a kind less authentic than the Year Books, to which
Coke alludes, have continued without interruption to the time in which
we live. It is well known that the elementary treatises of law, and the
dogmatical treatises of English jurisprudence, whether they appear under
the names of institutes, digests, or commentaries, do not rest on the
authority of the supreme power, like the books called the Institute,
Digest, Code, and authentic collations in the Roman law. With us
doctrinal books of that description have little or no authority, other
than as they are supported by the adjudged cases and reasons given at
one time or other from the bench; and to these they constantly refer.
This appears in Coke's Institutes, in Comyns's Digest, and in all books
of that nature. To give judgment privately is to put an end to reports;
and to put an end to reports is to put an end to the law of England. It
was fortunate for the Constitution of this kingdom, that, in the
judicial proceedings in the case of ship-money, the Judges did not then
venture to depart from the ancient course. They gave and they argued
their judgment in open court.[30] Their reasons were publicly given, and
the reasons assigned for their judgment took away all its authority. The
great historian, Lord Clarendon, at that period a young lawyer, has told
us that the Judges gave as law from the bench what every man in the hall
knew not to be law.
This publicity, and this mode of attending the decision with its
grounds, is observed not only in the tribunals where the Judges preside
in a judicial capacity, individually or collectively, but where they are
consulted by the Peers on the law in all _writs of error_ brought from
below. In the opinion they give of the matter assigned as error, one at
least of the Judges argues the questions at large. He argues them
publicly, though in the Chamber of Parliament,--and in such a manner,
that every professor, practitioner, or student of the law, as well as
the parties to the suit, may learn the opinions of all the Judges of all
the courts upon those points in which the Judges in one court might be
mistaken.
Your Committee is of opinion that nothing better could be devised by
human wisdom than argued judgments publicly delivered for preserving
unbroken the great traditionary body of the law, and for marking,
whilst that great body remained unaltered, every variation in the
application and the construction of particular parts, for pointing out
the ground of each variation, and for enabling the learned of the bar
and all intelligent laymen to distinguish those changes made for the
advancement of a more solid, equitable, and substantial justice,
according to the variable nature of human affairs, a progressive
experience, and the improvement of moral philosophy, from those
hazardous changes in any of the ancient opinions and decisions which may
arise from ignorance, from levity, from false refinement, from a spirit
of innovation, or from other motives, of a nature not more justifiable.
Your Committee, finding this course of proceeding to be concordant with
the character and spirit of our judicial proceeding, continued from time
immemorial, supported by arguments of sound theory, and confirmed by
effects highly beneficial, could not see without uneasiness, in this
great trial for Indian offences, a marked innovation. Against their
reiterated requests, remonstrances, and protestations, the opinions of
the Judges were always taken secretly. Not only the constitutional
publicity for which we contend was refused to the request and entreaty
of your Committee, but when a noble peer, on the 24th day of June, 1789,
did in open court declare that he would then propose some questions to
the Judges in that place, and hoped to receive their answer openly,
according to the approved good customs of that and of other courts, the
Lords instantly put a stop to the further proceeding by an immediate
adjournment to the Chamber of Parliament. Upon this adjournment, we find
by the Lords' Journals, that the House, on being resumed, ordered, that
"it should resolve itself into a Committee of the whole House, on
Monday next, to take into consideration what is the proper manner of
putting questions by the Lords to the Judges, and of their answering the
same, in judicial proceedings." The House did thereon resolve itself
into a committee, from which the Earl of Galloway, on the 29th of the
same month, reported as follows:--"That the House has, in the trial of
Warren Hastings, Esquire, proceeded in a regular course, in the manner
of propounding their questions to the Judges in the Chamber of
Parliament, and in receiving their answers to them in the same place."
The resolution was agreed to by the Lords; but the protest as below[31]
was entered thereupon, and supported by strong arguments.
Your Committee remark, that this resolution states only, that the House
had proceeded, in this secret manner of propounding questions to the
Judges and of receiving their answers, during the trial, and on matters
of debate between the parties, "in a regular course." It does not
assert that another course would not have been _as_ regular. It does not
state either judicial convenience, principle, or body of precedents for
that _regular course_. No such body of precedents appear on the Journal,
that we could discover. Seven-and-twenty, at least, in a regular series,
are directly contrary to this regular course. Since the era of the 29th
of June, 1789, no one question has been admitted to go publicly to the
Judges.
This determined and systematic privacy was the more alarming to your
Committee, because the questions did not (except in that case) originate
from the Lords for the direction of their own conscience. These
questions, in some material instances, were not made or allowed by the
parties at the bar, nor settled in open court, but differed materially
from what your Managers contended was the true state of the question, as
put and argued by them. They were such as the Lords thought proper to
state for them. Strong remonstrances produced some alteration in this
particular; but even after these remonstrances, several questions were
made on statements which the Managers never made nor admitted.
Your Committee does not know of any precedent before this, in which the
Peers, on a proposal of the Commons, or of a less weighty person before
their court, to have the cases publicly referred to the Judges, and
their arguments and resolutions delivered in their presence, absolutely
refused. The very few precedents of such private reference on trials
have been made, as we have observed already, _sub silentio_, and without
any observation from the parties. In the precedents we produce, the
determination is accompanied with its reasons, and the publicity is
considered as the clear, undoubted right of the parties.
Your Committee, using their best diligence, have never been able to form
a clear opinion upon the ground and principle of these decisions. The
mere result, upon each case decided by the Lords, furnished them with no
light, from any principle, precedent, or foregone authority of law or
reason, to guide them with regard to the next matter of evidence which
they had to offer, or to discriminate what matter ought to be urged or
to be set aside: your Committee not being able to divine whether the
particular evidence, which, upon a conjectural principle, they might
choose to abandon, would not appear to this House, and to the judging
world at large, to be admissible, and possibly decisive proof. In these
straits, they had and have no choice, but either wholly to abandon the
prosecution, and of consequence to betray the trust reposed in them by
this House, or to bring forward such matter of evidence as they are
furnished with from sure sources of authenticity, and which in their
judgment, aided by the best advice they could obtain, is possessed of a
moral aptitude juridically to prove or to illustrate the case which the
House had given them, in charge.
MODE OF PUTTING THE QUESTIONS.
When your Committee came to examine into those private opinions of the
Judges, they found, to their no small concern, that the mode both of
putting the questions to the Judges, and their answers, was still more
unusual and unprecedented than the privacy with which those questions
were given and resolved.
This mode strikes, as we apprehend, at the vital privileges of the
House. For, with the single exception of the first question put to the
Judges in 1788, the case being stated, the questions are raised
directly, specifically, and by name, on those privileges: that is, _What
evidence is it competent for the Managers of the House of Commons to
produce?_ We conceive that it was not proper, _nor justified by a single
precedent_, to refer to the Judges of the inferior courts any question,
and still less for them to decide in their answer, of what is or is not
competent for the House of Commons, or for any committee acting under
their authority, to do or not to do, in any instance or respect
whatsoever. This new and unheard-of course can have no other effect than
to subject to the discretion of the Judges the Law of Parliament and the
privileges of the House of Commons, and in a great measure the judicial
privileges of the Peers themselves: any intermeddling in which on their
part we conceive to be a dangerous and unwarrantable assumption of
power. It is contrary to what has been declared by Lord Coke himself,
in a passage before quoted, to be the duty of the Judges,--and to what
the Judges of former times have confessed to be their duty, on occasions
to which he refers in the time of Henry VI. And we are of opinion that
the conduct of those sages of the law, and others their successors, who
have been thus diffident and cautious in giving their opinions upon
matters concerning Parliament, and particularly on the privileges of the
House of Commons, was laudable in the example, and ought to be followed:
particularly the principles upon which the Judges declined to give their
opinions in the year 1614. It appears by the Journals of the Lords, that
a question concerning the law relative to impositions having been put to
the Judges, the proceeding was as follows. "Whether the Lords the Judges
shall be heard deliver their opinion touching the point of impositions,
before further consideration be had of answer to be returned to the
lower House concerning the message from them lately received. Whereupon
the number of the Lords requiring to hear the Judges' opinions by saying
'_Content_' exceeding the others which said '_Non Content_,' the Lords
the Judges, so desiring, were permitted to withdraw themselves into the
Lord Chancellor's private rooms, where having remained awhile and
advised together, they returned into the House, and, having taken their
places, and standing discovered, did, by the mouth of the Lord
Chief-Justice of the King's Bench, humbly desire to be forborne at this
time, in this place, to deliver any opinion in this case, for many
weighty and important reasons, which his Lordship delivered with great
gravity and eloquence; concluding that himself and his brethren are upon
particulars in judicial course to speak and judge between the King's
Majesty and his people, and likewise between his Highness's subjects,
and in no case to be disputants on any side."
Your Committee do not find anything which, through inadvertence or
design, had a tendency to subject the law and course of Parliament to
the opinions of the Judges of the inferior courts, from that period
until the 1st of James II. The trial of Lord Delamere for high treason
was had by special commission before the Lord High Steward: it was
before the act which directs that _all_ peers should be summoned to such
trials. This was not a trial in full Parliament, in which case it was
then contended for that the Lord High Steward was the judge of the law,
presiding in the Court, but had no vote in the verdict, and that the
Lords were triers only, and had no vote in the judgment of law. This was
looked on as the course, where the trial was not in full Parliament, in
which latter case there was no doubt but that the Lord High Steward made
a part of the body of the triers, and that the whole House was the
judge.[32] In this cause, after the evidence for the Crown had been
closed, the prisoner prayed the Court to adjourn. The Lord High Steward
doubted his power to take that step in that stage of the trial; and the
question was, "Whether, the trial not being in full Parliament, when the
prisoner is upon his trial, and evidence for the King is given, the
Lords being (as it may be termed) charged with the prisoner, the Peers
may separate for a time, which is the consequence of an adjournment?"
The Lord High Steward doubted of his power to adjourn the Court. The
case was evidently new, and his Grace proposed to have the opinion of
the Judges upon it. The Judges in consequence offering to withdraw into
the Exchequer Chamber, Lord Falconberg "insisted that the question
concerned the privilege of the Peerage only, and conceived that _the
Judges are not concerned to make any determination in that matter; and
being such a point of privilege, certainly the inferior courts have no
right to determine it_." It was insisted, therefore, that the Lords
triers should retire with the Judges. The Lord High Steward thought
differently, and opposed this motion; but finding the other opinion
generally prevalent, he gave way, and the Lords triers retired, taking
the Judges to their consult. When the Judges returned, they delivered
their opinion in _open court_. Lord Chief-Justice Herbert spoke for
himself and the rest of the Judges. After observing on the novelty of
the case, with a temperate and becoming reserve with regard to the
rights of Parliaments, he marked out the limits of the office of the
inferior Judges on such occasions, and declared,--"_All that we, the
Judges, can do is to acquaint your Grace and the noble Lords what the
law is in the inferior courts in cases of the like nature_, and the
reason of the law in those points, and _then leave the jurisdiction of
the court to its proper judgment_." The Chief-Justice concluded his
statement of the usage below, and his observations on the difference of
the cases of a peer tried in full Parliament and by a special
commission, in this manner:--"Upon the whole matter, my Lords, whether
the Peers being judges in the one and not in the other instance alters
the case, or whether the reason of the law in inferior courts why the
jury are not permitted to separate until they have discharged
themselves of their verdict may have any influence on this case, _where
that reason seems to fail_, the prisoner being to be tried by men of
unquestionable honor, _we cannot presume so far as to make any
determination, in a case which is both new to us and of great
consequence in itself_; but think it the proper way for _us_, having
laid matters as we conceive them before your Grace and my Lords, _to
submit the jurisdiction of your own court to your own determination_."
It appears to your Committee, that the Lords, who stood against
submitting the course of their high court to the inferior Judges, and
that the Judges, who, with a legal and constitutional discretion,
declined giving any opinion in this matter, acted as became them; and
your Committee sees no reason why the Peers at this day should be less
attentive to the rights of their court with regard to an exclusive
judgment on their own proceedings or to the rights of the Commons acting
as accusers for the whole commons of Great Britain in that court, or why
the Judges should be less reserved in deciding upon any of these points
of high Parliamentary privilege, than the Judges of that and the
preceding periods. This present case is a proceeding in full Parliament,
and not like the case under the commission in the time of James II., and
still more evidently out of the province of Judges in the inferior
courts.
All the precedents previous to the trial of Warren Hastings, Esquire,
seem to your Committee to be uniform. The Judges had constantly refused
to give an opinion on any of the powers, privileges, or competencies of
either House. But in the present instance your Committee has found, with
great concern, a further matter of innovation. Hitherto the constant
practice has been to put questions to the Judges but in the three
following ways: as, 1st, A question of pure abstract law, without
reference to any case, or merely upon an A.B. case stated to them; 2dly,
To the legal construction of some act of Parliament; 3dly, To report the
course of proceeding in the courts below upon an abstract case. Besides
these three, your Committee knows not of a single example of any sort,
during the course of any judicial proceeding at the bar of the House of
Lords, whether the prosecution has been by indictment, by information
from the Attorney-General, or by impeachment of the House of Commons.
In the present trial, the Judges appear to your Committee not to have
given their judgment on points of law, stated as such, but to have in
effect tried the cause, in the whole course of it,--with one instance to
the contrary.
The Lords have stated no question of general law, no question on the
construction of an act of Parliament, no question concerning the
practice of the courts below. _They put the whole gross case and matter
in question, with all its circumstances, to the Judges._ They have, _for
the first time_, demanded of them what particular person, paper, or
document ought or ought not to be produced before them by the Managers
for the Commons of Great Britain: for instance, whether, under such an
article, the Bengal Consultations of such a day, the examination of
Rajah Nundcomar, and the like. The operation of this method is in
substance not only to make the Judges masters of the whole process and
conduct of the trial, but through that medium to transfer to them the
ultimate judgment on the cause itself and its merits.
The Judges attendant on the Court of Peers hitherto have not been
supposed to know the particulars and minute circumstances of the cause,
and must therefore be incompetent to determine upon those circumstances.
The evidence taken, is not, of course, that we can find, delivered to
them; nor do we find that in fact any order has been made for that
purpose, even supposing that the evidence could at all regularly be put
before them. They are present in court, not to hear the trial, but
solely to advise in matter of law; they cannot take upon themselves to
say anything about the Bengal Consultations, or to know anything of
Rajah Nundcomar, of Kelleram, or of Mr. Francis, or Sir John Clavering.
That the House may be the more fully enabled to judge of the nature and
tendency of thus putting the question, _specifically, and on the gross
case_, your Committee thinks fit here to insert one of those questions,
reserving a discussion of its particular merits to another place. It was
stated on the 22d of April, 1790, "On that day the Managers proposed to
show that Kelleram fell into great balances with the East India Company,
in consequence of his appointment." It is so stated in the printed
Minutes (p. 1206). But the real tendency and gist of the proposition is
not shown. However, the question was put, "Whether it be or be not
competent _to the Managers for the Commons to give evidence upon the
charge in the sixth article, to prove_ that the rent [at?] which the
defendant, Warren Hastings, Esquire, let the lands mentioned in the said
sixth article of charge to Kelleram fell into arrear and was deficient;
and whether, if proof were offered that the rent fell into arrear
immediately after the letting, the evidence in that case would be
competent?" The Judges answered, on the 27th of the said month, as
follows:--"_It is not competent for the Managers for the House of
Commons_ to give evidence upon the charge in the sixth article, to prove
that the rent at which the defendant, Warren Hastings, let the lands
[mentioned?] in the said sixth article of charge to Kelleram fell into
arrear and was deficient."
The House will observe that on the question two cases of competence were
put: the first, on the competence of Managers for the House of Commons
to give the evidence supposed to be offered by them, but which we deny
to have been offered in the manner and for the purpose assumed in this
question; the second is in a shape apparently more abstracted, and more
nearly approaching to Parliamentary regularity,--on the competence of
the evidence itself, in the case of a supposed circumstance being
superadded. The Judges answered only the first, denying flatly the
competence of the Managers. As to the second, the competence of the
supposed evidence, they are profoundly silent. Having given this blow to
our competence, about the other question, (which was more within their
province,) namely, the competence of evidence on a case hypothetically
stated, they give themselves no trouble. The Lords on that occasion
rejected the whole evidence. On the face of the Judges' opinion it is a
determination _on a case_, the trial of which was not with them, but it
contains _no rule or principle of law_, to which alone it was their duty
to speak.[33]
These essential innovations tend, as your Committee conceives, to make
an entire alteration in the constitution and in the purposes of the High
Court of Parliament, and even to reverse the ancient relations between
the Lords and the Judges. They tend wholly to take away from the Commons
the benefit of making good their case before the proper judges, and
submit this high inquest to the inferior courts.
Your Committee sees no reason why, on the same principles and
precedents, the Lords may not terminate their proceedings in this, and
in all future trials, by sending the whole body of evidence taken before
them, in the shape of a special verdict, to the Judges, and may not
demand of them, whether they ought, on the whole matter, to acquit or
condemn the prisoner; nor can we discover any cause that should hinder
them [the Judges] from deciding on the accumulative body of the evidence
as hitherto they have done in its parts, and from dictating the
existence or non-existence of a misdemeanor or other crime in the
prisoner as they think fit, without any more reference to principle or
precedent of law than hitherto they have thought proper to apply in
determining on the several parcels of this cause.
Your Committee apprehends that very serious inconveniencies and
mischiefs may hereafter arise from a practice in the House of Lords of
considering itself as unable to act without the judges of the inferior
courts, of implicitly following their dictates, of adhering with a
literal precision to the very words of their responses, and putting them
to decide on the competence of the Managers for the Commons, the
competence of the evidence to be produced, who are to be permitted to
appear, what questions are to be asked of witnesses, and indeed, parcel
by parcel, on the whole of the gross case before them,--as well as to
determine upon the order, method, and process of every part of their
proceedings. The judges of the inferior courts are by law rendered
independent of the Crown. But this, instead of a benefit to the subject,
would be a grievance, if no way was left of producing a responsibility.
If the Lords cannot or will not act without the Judges, and if (which
God forbid!) the Commons should find it at any time hereafter necessary
to impeach them before the Lords, this House would find the Lords
disabled in their functions, fearful of giving any judgment on matter of
law or admitting any proof of fact without them [the Judges]; and having
once assumed the rule of proceeding and practice below as their rule,
they must at every instant resort, for their means of judging, to the
authority of those whom they are appointed to judge.
Your Committee must always act with regard to men as they are. There are
no privileges or exemptions from the infirmities of our common nature.
We are sensible that all men, and without any evil intentions, will
naturally wish to extend their own jurisdiction, and to weaken all the
power by which they may be limited and controlled. It is the business of
the House of Commons to counteract this tendency. This House had given
to its Managers no power to abandon its privileges and the rights of its
constituents. They were themselves as little disposed as authorized to
make this surrender. They are members of this House, not only charged
with the management of this impeachment, but partaking of a general
trust inseparable from the Commons of Great Britain in Parliament
assembled, one of whose principal functions and duties it is to be
observant of the courts of justice, and to take due care that none of
them, from the lowest to the highest, shall pursue new courses, unknown
to the laws and constitution, of this kingdom, or to equity, sound legal
policy, or substantial justice. Your Committee were not sent into
Westminster Hall for the purpose of contributing in their persons, and
under the authority of the House, to change the course or law of
Parliament, which had continued unquestioned for at least four hundred
years. Neither was it any part of their mission to suffer precedents to
be established, with relation to the law and rule of evidence, which
tended in their opinion to shut up forever all the avenues to justice.
They were not to consider a rule of evidence as a means of concealment.
They were not, without a struggle, to suffer any subtleties to prevail
which would render a process in Parliament, not the terror, but the
protection, of all the fraud and violence arising from the abuse of
British power in the East. Accordingly, your Managers contended with all
their might, as their predecessors in the same place had contended with
more ability and learning, but not with more zeal and more firmness,
against those dangerous innovations, as they were successively
introduced: they held themselves bound constantly to protest, and in one
or two instances they did protest, in discourses of considerable length,
against those private, and, for what they could find, unargued judicial
opinions, which must, as they fear, introduce by degrees the miserable
servitude which exists where the law is uncertain or unknown.
DEBATES ON EVIDENCE.
The chief debates at the bar, and the decisions of the Judges, (which we
find in all cases implicitly adopted, in all their extent and without
qualification, by the Lords,) turned upon _evidence_. Your Committee,
before the trial began, were apprised, by discourses which prudence did
not permit them to neglect, that endeavors would be used to embarrass
them in their proceedings by exceptions against evidence; that the
judgments and opinions of the courts below would be resorted to on this
subject; that there the rules of evidence were precise, rigorous, and
inflexible; and that the counsel for the criminal would endeavor to
introduce the same rules, with the same severity and exactness, into
this trial. Your Committee were fully assured, and were resolved
strenuously to contend, that no doctrine or rule of law, much less the
practice of any court, ought to have weight or authority in Parliament,
further than as such doctrine, rule, or practice is agreeable to the
proceedings in Parliament, or hath received the sanction of approved
precedent there, or is founded on the immutable principles of
substantial justice, without which, your Committee readily agrees, no
practice in any court, high or low, is proper or fit to be maintained.
In this preference of the rules observed in the High Court of
Parliament, preëminently superior to all the rest, there is no claim
made which the inferior courts do not make, each with regard to itself.
It is well known that the rules of proceedings in these courts vary, and
some of them very essentially; yet the usage of each court is the law of
the court, and it would be vain to object to any rule in any court,
that it is not the rule of another court. For instance: as a general
rule, the Court of King's Bench, on trials by jury, cannot receive
depositions, but must judge by testimony _vivâ voce_. The rule of the
Court of Chancery is not only not the same, but it is the reverse, and
Lord Hardwicke ruled accordingly. "The constant and established
proceedings of this Court," said this great magistrate, "are on written
evidence, like the proceedings on the Civil and Canon Law. This is the
course of the Court, and the course of the Court is the law of the
Court."[34]
Your Managers were convinced that one of the principal reasons for which
this cause was brought into Parliament was the danger that in inferior
courts their rule would be formed naturally upon their ordinary
experience, and the exigencies of the cases which in ordinary course
came before them. This experience, and the exigencies of these cases,
extend little further than the concerns of a people comparatively in a
narrow vicinage, a people of the same or nearly the same language,
religion, manners, laws, and habits: with them an intercourse of every
kind was easy.
These rules of law in most cases, and the practice of the courts in all,
could not be easily applicable to a people separated from Great Britain
by a very great part of the globe,--separated by manners, by principles
of religion, and of inveterate habits as strong as nature itself, still
more than by the circumstance of local distance. Such confined and
inapplicable rules would be convenient, indeed, to oppression, to
extortion, bribery, and corruption, but ruinous to the people, whose
protection is the true object of all tribunals and of all their rules.
Even English judges in India, who have been sufficiently tenacious of
what they considered as the rules of English courts, were obliged in
many points, and particularly with regard to evidence, to relax very
considerably, as the civil and politic government has been obliged to do
in several other cases, on account of insuperable difficulties arising
from a great diversity of manners, and from what may be considered as a
diversity even in the very constitution of their minds,--instances of
which your Committee will subjoin in a future Appendix.
Another great cause why your Committee conceived this House had chosen
to proceed in the High Court of Parliament was because the inferior
courts were habituated, with very few exceptions, to try men for the
abuse only of their individual and natural powers, which can extend but
a little way.[35] Before them, offences, whether of fraud or violence or
both, are, for much the greater part, charged upon persons of mean and
obscure condition. Those unhappy persons are so far from being supported
by men of rank and influence, that the whole weight and force of the
community is directed against them. In this case, they are in general
objects of protection as well as of punishment; and the course perhaps
ought, as it is _commonly_ said to be, not to suffer anything to be
applied to their conviction beyond what the strictest rules will permit.
But in the cause which your Managers have in charge the circumstances
are the very reverse to what happens in the cases of mere personal
delinquency which come before the [inferior] courts. These courts have
not before them persons who act, and who justify their acts, by the
nature of a despotical and arbitrary power. The abuses stated in our
impeachment are not those of mere individual, natural faculties, but the
abuses of civil and political authority. The offence is that of one who
has carried with him, in the perpetration of his crimes, whether of
violence or of fraud, the whole force of the state,--who, in the
perpetration and concealment of offences, has had the advantage of all
the means and powers given to government for the detection and
punishment of guilt and for the protection of the people. The people
themselves, on whose behalf the Commons of Great Britain take up this
remedial and protecting prosecution, are naturally timid. Their spirits
are broken by the arbitrary power usurped over them, and claimed by the
delinquent as his law. They are ready to flatter the power which they
dread. They are apt to look for favor [from their governors] by covering
those vices in the predecessor which they fear the successor may be
disposed to imitate. They have reason to consider complaints as means,
not of redress, but of aggravation to their sufferings; and when they
shall ultimately hear that the nature of the British laws and the rules
of its tribunals are such as by no care or study either they, or even
the Commons of Great Britain, who take up their cause, can comprehend,
but which in effect and operation leave them unprotected, and render
those who oppress them secure in their spoils, they must think still
worse of British justice than of the arbitrary power of the Company's
servants which hath been exercised to their destruction. They will be
forever, what for the greater part they have hitherto been, inclined to
compromise with the corruption of the magistrates, as a screen against
that violence from which the laws afford them no redress.
For these reasons your Committee did and do strongly contend that the
Court of Parliament ought to be open with great facility to the
production of all evidence, except that which the precedents of
Parliament teach them authoritatively to reject, or which hath no sort
of natural aptitude directly or circumstantially to prove the case. They
have been and are invariably of opinion that the Lords ought _to
enlarge, and not to contrast, the rules of evidence, according to the
nature and difficulties of the case_, for redress to the injured, for
the punishment of oppression, for the detection of fraud,--and above
all, to prevent, what is the greatest dishonor to all laws and to all
tribunals, the failure of justice. To prevent the last of these evils
all courts in this and all countries have constantly made all their
maxims and principles concerning testimony to conform; although such
courts have been bound undoubtedly by stricter rules, both of form and
of prescript cases, than the sovereign jurisdiction exercised by the
Lords on the impeachment of the Commons ever has been or ever ought to
be. Therefore your Committee doth totally reject any rules by which the
practice of any inferior court is affirmed as a directory guide to an
higher, especially where the forms and the powers of the judicature are
different, and the objects of judicial inquiry are not the same.
Your Committee conceives that the trial of a cause is not in the
arguments or disputations of the prosecutors and the counsel, but in
_the evidence_, and that to refuse evidence is to refuse to hear the
cause: nothing, therefore, but the most clear and weighty reasons ought
to preclude its production. Your Committee conceives, that, when
evidence on the face of it relevant, that is, connected with the party
and the charge, was denied to be competent, _the burden lay upon those
who opposed it_ to set forth the authorities, whether of positive
statute, known recognized maxims and principles of law, passages in an
accredited institute, code, digest, or systematic treatise of laws, or
some adjudged cases, wherein, the courts have rejected evidence of that
nature. No such thing ever (except in one instance, to which we shall
hereafter speak) was produced at the bar, nor (that we know of) produced
by the Lords in their debates, or by the Judges in the opinions by them
delivered. Therefore, for anything which as yet appears to your
Committee to the contrary, these responses and decisions were, in many
of the points, not the determinations of any law whatsoever, but mere
arbitrary decrees, to which we could not without solemn protestation,
submit.
Your Committee, at an early period, and frequently since the
commencement of this trial, have neglected no means of research which
might afford them information concerning these supposed strict and
inflexible rules of proceeding and of evidence, which, appeared to them,
destructive of all the means and ends of justice: and, first, they
examined carefully the Rolls and Journals of the House of Lords, as also
the printed trials of cases before that court.
Your Committee finds but one instance, in the whole course of
Parliamentary impeachments, in which evidence offered by the Commons has
been rejected on the plea of inadmissibility or incompetence. This was
in the case of Lord Strafford's trial; when the copy of a warrant (the
same not having any attestation to authenticate it as a true copy) was,
on deliberation, not admitted,--and your Committee thinks, as the case
stood, with reason. But even in this one instance the Lords seemed to
show a marked anxiety not to narrow too much the admissibility of
evidence; for they confined their determination "to this individual
case," as the Lord Steward reported their resolution; and he
adds,--"They conceive this could be no impediment or failure in the
proceeding, because the truth and verity of it would depend on the first
general power given to execute it, which they who manage the evidence
for the Commons say they could prove."[36] Neither have objections to
evidence offered by the prisoner been very frequently made, nor often
allowed when made. In the same case of Lord Strafford, two books
produced by his Lordship, without proof by whom they were written, were
rejected, (and on a clear principle,) "as being private books, and no
records."[37] On both these occasions, the questions were determined by
the Lords alone, without any resort to the opinions of the Judges. In
the impeachments of Lord Stafford, Dr. Sacheverell, and Lord Wintoun, no
objection to evidence appears in the Lords' Journals to have been
pressed, and not above one taken, which was on the part of the Managers.
Several objections were, indeed, taken to evidence in Lord
Macclesfield's trial.[38] They were made on the part of the Managers,
except in two instances, where the objections were made by the witnesses
themselves. They were all determined (those started by the Managers in
their favor) by the Lords themselves, without any reference to the
Judges. In the discussion of one of them, a question was stated for the
Judges concerning the law in a similar case upon an information in the
court below; but it was set aside by the previous question.[39]
On the impeachment of Lord Lovat, no more than one objection to evidence
was taken by the Managers, against which Lord Lovat's counsel were not
permitted to argue. Three objections on the part of the prisoner were
made to the evidence offered by the Managers, but all without
success.[40] The instances of similar objections in Parliamentary trials
of peers on indictments are too few and too unimportant to require being
particularized;--one, that in the case of Lord Warwick, has been
already stated.
The principles of these precedents do not in the least affect any case
of evidence which your Managers had to support. The paucity and
inapplicability of instances of this kind convince your Committee that
the Lords have ever used some latitude and liberality in all the means
of bringing information before them: nor is it easy to conceive, that,
as the Lords are, and of right ought to be, judges of law and fact, many
cases should occur (except those where a personal _vivâ voce_ witness is
denied to be competent) in which a judge, possessing an entire judicial
capacity, can determine by anticipation what is good evidence, and what
not, before he has heard it. When he has heard it, of course he will
judge what weight it is to have upon his mind, or whether it ought not
entirely to be struck out of the proceedings.
Your Committee, always protesting, as before, against the admission of
any law, foreign or domestic, as of authority in Parliament, further
than as written reason and the opinion of wise and informed men, has
examined into the writers on the Civil Law, ancient and more recent, in
order to discover what those rules of evidence, in any sort applicable
to criminal cases, were, which were supposed to stand in the way of the
trial of offences committed in India.
They find that the term Evidence, _Evidentia_, from whence ours is
taken, has a sense different in the Roman law from what it is understood
to bear in the English jurisprudence; the term most nearly answering to
it in the Roman being _Probatio_, Proof, which, like the term
_Evidence_, is a generic term, including everything by which a doubtful
matter may be rendered more certain to the judge: or, as Gilbert
expresses it, every matter is evidence which amounts to the proof of the
point in question.[41]
On the general head of Evidence, or Proof, your Committee finds that
much has been written by persons learned in the Roman law, particularly
in modern times,--and that many attempts have been made to reduce to
rules the principles of evidence or proof, a matter which by its very
nature seems incapable of that simplicity, precision, and generality
which are necessary to supply the matter or to give the form to a rule
of law. Much learning has been employed on the doctrine of indications
and presumptions in their books,--far more than is to be found in our
law. Very subtle disquisitions were made on all matters of jurisprudence
in the times of the classical Civil Law, by the followers of the Stoic
school.[42] In the modern school of the same law, the same course was
taken by Bartolus, Baldus, and the Civilians who followed them, before
the complete revival of literature.[43] All the discussions to be found
in those voluminous writings furnish undoubtedly an useful exercise to
the mind, by methodizing the various forms in which one set of facts or
collection of facts, or the qualities or demeanor of persons,
reciprocally influence each other; and by this course of juridical
discipline they add to the readiness and sagacity of those who are
called to plead or to judge. But as human affairs and human actions are
not of a metaphysical nature, but the subject is concrete, complex, and
moral, they cannot be subjected (without exceptions which reduce it
almost to nothing) to any certain rule. Their rules with regard to
competence were many and strict, and our lawyers have mentioned it to
their reproach. "The Civilians," it has been observed, "differ in
nothing more than admitting evidence; for they reject _histriones_, &c.,
and whole tribes of people."[44] But this extreme rigor as to
competency, rejected by our law, is not found to extend to the _genus_
of evidence, but only to a particular _species_,--personal witnesses.
Indeed, after all their efforts to fix these things by positive and
inflexible maxims, the best Roman lawyers, in their best ages, were
obliged to confess that every case of evidence rather formed its own
rule than that any rule could be adapted to every case. The best
opinions, however, seem to have reduced the admissibility of witnesses
to a few heads. "For if," said Callistratus, in a passage preserved to
us in the Digest, "the testimony is free from suspicion, either on
account of the quality of the _person_, namely, that he is in a
reputable situation, or for _cause_, that is to say, that the testimony
given is not for reward nor favor nor for enmity, such a witness is
admissible." This first description goes to _competence_, between which
and _credit_ Lord Hardwicke justly says the discrimination is very nice.
The other part of the text shows their anxiety to reduce credibility
itself to a fixed rule. It proceeds, therefore,--"His Sacred Majesty,
Hadrian, issued a rescript to Vivius Varus, Lieutenant of Cilicia, to
this effect, that he who sits in judgment is the most capable of
determining what credit is to be given to witnesses." The words of the
letter of rescript are as follow:--"You ought best to know what credit
is to be given to witnesses,--who, and of what dignity, and of what
estimation they are,--whether they seem to deliver their evidence with
simplicity and candor, whether they seem to bring a formed and
premeditated discourse, or whether on the spot they give probable matter
in answer to the questions that are put to them." And there remains a
rescript of the same prince to Valerius Verus, on the bringing out the
credit of witnesses. This appears to go more to the _general_ principles
of evidence. It is in these words:--"What evidence, and in what measure
or degree, shall amount to proof in each case can be defined in no
manner whatsoever that is sufficiently certain. For, though not always,
yet frequently, the truth of the affair may appear without any matter of
public record. In some cases the number of the witnesses, in others
their dignity and authority, is to be weighed; in others, concurring
public fame tends to confirm the credit of the evidence in question.
This alone I am able, and in a few words, to give you as my
determination: that you ought not too readily to bind yourself to try
the cause upon any one description of evidence; but you are to estimate
by your own discretion what you ought to credit, or what appears to you
not to be established by proof sufficient."[45]
The modern writers on the Civil Law have likewise much matter on this
subject, and have introduced a strictness with regard to personal
testimony which our particular jurisprudence has not thought it at all
proper to adopt. In others we have copied them more closely. They divide
Evidence into two parts, in which they do not differ from the ancients:
1st, What is Evidence, or Proof, by itself; 2dly, What is Presumption,
"which is a probable conjecture, from a reference to something which,
coming from marks and tokens ascertained, shall be taken for truth,
until some other shall be adduced." Again, they have labored
particularly to fix rules for presumptions, which they divide into, 1.
Violent and necessary, 2. Probable, 3. and lastly, Slight and rash.[46]
But finding that this head of Presumptive Evidence (which makes so large
a part with them and with us in the trial of all causes, and
particularly criminal causes) is extremely difficult to ascertain,
either with regard to what shall be considered as exclusively creating
any of these three degrees of presumption, or what facts, and how
proved, and what marks and tokens, may serve to establish them, even
those Civilians whose character it is to be subtle to a fault have been
obliged to abandon the task, and have fairly confessed that the labors
of writers to fix rules for these matters have been vain and fruitless.
One of the most able of them[47] has said, "that the doctors of the law
have written nothing of value concerning presumptions; nor is the
subject-matter such as to be reduced within the prescribed limit of any
certain rules. In truth, it is from the actual existing case, and from
the circumstances of the persons and of the business, that we ought
(under the guidance of an incorrupt judgment of the mind, which is
called an equitable discretion) to determine what presumptions or
conjectural proofs are to be admitted as rational or rejected as false,
or on which the understanding can pronounce nothing, either the one way
or the other."
It is certain, that, whatever over-strictness is to be found in the
older writers on this law with regard to evidence, it chiefly related to
the mere competency of witnesses; yet even here the rigor of the Roman
lawyers relaxed on the necessity of the case. Persons who kept houses of
ill-fame were with them incompetent witnesses; yet among the maxims of
that law the rule is well known of _Testes lupanares in re lupanari_.
In ordinary cases, they require two witnesses to prove a fact; and
therefore they held, "that, if there be but one witness, and no probable
grounds of presumption of some kind (_nulla argumenta_), that one
witness is by no means to be heard"; and it is not inelegantly said in
that case, _Non jus deficit, sed probatio_, "The failure is not in the
law, but in the proof." But if other grounds of presumption appear, one
witness is to be heard: "for it is not necessary that one crime should
be established by one sort of proof only, as by witnesses, or by
documents, or by presumptions; all the modes of evidence may be so
conjoined, that, where none of them alone would affect the prisoner, all
the various concurrent proofs should overpower him like a storm of
hail." This is held particularly true in cases where crimes are secret,
and detection difficult. The necessity of detecting and punishing such
crimes superseded, in the soundest authors, this theoretic aim at
perfection, and obliged technical science to submit to practical
expedience. "_In re criminali_," said the rigorists, "_probationes
debent esse evidentes et luce meridiana clariores_": and so undoubtedly
it is in offences which admit such proof. But reflection taught them
that even their favorite rules of incompetence must give way to the
exigencies of distributive justice. One of the best modern writers on
the Imperial Criminal Law, particularly as practised in Saxony,
(Carpzovius,) says,--"This alone I think it proper to remark, that even
incompetent witnesses are sometimes admitted, if otherwise the truth
cannot be got at; and this particularly in facts and crimes which are of
difficult proof"; and for this doctrine he cites Farinacius, Mascardus,
and other eminent Civilians who had written on Evidence. He proceeds
afterwards,--"However, this is to be taken with a caution, that the
impossibility of otherwise discovering the truth is not construed from
hence, that other witnesses were not actually concerned, but that, from
the nature of the crime, or from regard had to the place and time, other
witnesses could not be present." Many other passages from the same
authority, and from others to a similar effect, might be added; we
shall only remark shortly, that Gaill, a writer on the practice of that
law the most frequently cited in our own courts, gives the rule more in
the form of a maxim,--"that the law is contented with such proof as
_can_ be made, if the subject _in its nature_ is difficult of
proof."[48] And the same writer, in another passage, refers to another
still more general maxim, (and a sound maxim it is,) that the power and
means of proof ought not to be narrowed, but enlarged, that the truth
may not be concealed: "_Probationum facultas non angustari, sed ampliari
debeat, ne veritas occultetur._"[49]
On the whole, your Committee can find nothing in the writings of the
learned in this law, any more than they could discover anything in the
Law of Parliament, to support any one of the determinations given by the
Judges, and adopted by the Lords, against the evidence which your
Committee offered, whether direct and positive, or merely (as for the
greater part it was) circumstantial, and produced as a ground to form
legitimate presumption against the defendant: nor, if they were to admit
(which they do not) this Civil Law to be of authority in furnishing any
rule in an impeachment of the Commons, more than as it may occasionally
furnish a principle of reason on a new or undetermined point, do they
find any rule or any principle, derived from that law, which could or
ought to have made us keep back the evidence which we offered; on the
contrary, we rather think those rules and principles to be in agreement
with our conduct.
As to the Canon Law, your Committee, finding it to have adopted the
Civil Law with no very essential variation, does not feel it necessary
to make any particular statement on that subject.
Your Committee then came to examine into the authorities in the English
law, both as it has prevailed for many years back, and as it has been
recently received in our courts below. They found on the whole the rules
rather less strict, more liberal, and less loaded with positive
limitations, than in the Roman law. The origin of this latitude may
perhaps be sought in this circumstance, which we know to have relaxed
the rigor of the Roman law: courts in England do not judge upon
evidence, _secundum allegata et probata_, as in other countries and
under other laws they do, but upon verdict. By a fiction of law they
consider the jury as supplying, in some sense, the place of testimony.
One witness (and for that reason) is allowed sufficient to convict, in
cases of felony, which in other laws is not permitted.
In ancient times it has happened to the law of England (as in pleading,
so in matter of evidence) that a rigid strictness in the application of
technical rules has been more observed than at present it is. In the
more early ages, as the minds of the Judges were in general less
conversant in the affairs of the world, as the sphere of their
jurisdiction was less extensive, and as the matters which came before
them were of less variety and complexity, the rule being in general
right, not so much inconvenience on the whole was found from a literal
adherence to it as might have arisen from an endeavor towards a liberal
and equitable departure, for which further experience, and a more
continued cultivation of equity as a science, had not then so fully
prepared them. In those times that judicial policy was not to be
condemned. We find, too, that, probably from the same cause, most of
their doctrine leaned towards the restriction; and the old lawyers being
bred, according to the then philosophy of the schools, in habits of
great subtlety and refinement of distinction, and having once taken that
bent, very great acuteness of mind was displayed in maintaining every
rule, every maxim, every presumption of law creation, and every fiction
of law, with a punctilious exactness: and this seems to have been the
course which laws have taken in every nation.[50] It was probably from
this rigor, and from a sense of its pressure, that, at an early period
of our law, far more causes of criminal jurisdiction were carried into
the House of Lords and the Council Board, where laymen were judges, than
can or ought to be at present.
As the business of courts of equity became more enlarged and more
methodical,--as magistrates, for a long series of years, presided in the
Court of Chancery, who were not bred to the Common Law,--as commerce,
with its advantages and its necessities, opened a communication more
largely with other countries,--as the Law of Nature and Nations (always
a part of the law of England) came to be cultivated,--as an increasing
empire, as new views and new combinations of things were opened,--this
antique rigor and overdone severity gave way to the accommodation of
human concerns, for which rules were made, and not human concerns to
bend to them.
At length, Lord Hardwicke, in one of the cases the most solemnly argued,
that has been in man's memory, with the aid of the greatest learning at
the bar, and with the aid of all the learning on the bench, both bench
and bar being then supplied with men of the first form, declared from
the bench, and in concurrence with the rest of the Judges, and with the
most learned of the long robe, the able council on the side of the old
restrictive principles making no reclamation, "that the judges and sages
of the law have laid it down that there is but ONE general rule of
evidence,--_the best that the nature of the case will admit_."[51] This,
then, the master rule, that governs all the subordinate rules, does in
reality subject itself and its own virtue and authority _to the nature
of the case_, and leaves no rule at all of an independent, abstract, and
substantive quality. Sir Dudley Ryder, (then Attorney-General,
afterwards Chief-Justice,) in his learned argument, observed, that "it
is extremely proper that there should be _some_ general rules in
relation to evidence; but _if exceptions were not allowed to them, it
would be better to demolish all the general rules_. There is no general
rule without exception that we know of but this,--that _the best
evidence shall be admitted which the nature of the case will afford_. I
will show that rules as general as this are broke in upon _for the sake
of allowing evidence_. There is no rule that seems more binding than
that a man shall not be admitted an evidence in his own case, and yet
the Statute of Hue and Cry is an exception. A man's books are allowed
to be evidence, or, which is in substance the same, his servant's books,
_because the nature of the case requires it_,--as in the case of a
brewer's servants. Another general rule, that a wife cannot be witness
against her husband, has been broke in upon in cases of treason. Another
exception to the general rule, that a man may not be examined without
oath,--the last words of a dying man are given in evidence in the case
of murder." Such are the doctrines of this great lawyer.
Chief-Justice Willes concurs with Lord Hardwicke as to dispensing with
strict rules of evidence. "Such evidence," [he says,] "is to be admitted
as the _necessity_ of the case will allow of: as, for instance, a
marriage at Utrecht, certified under the seal of the minister there, and
of the said town, and that they cohabited together as man and wife, was
held to be sufficient proof that they were married." This learned judge
(commenting upon Lord Coke's doctrine, and Serjeant Hawkins's after him,
that the oaths of Jews and pagans were not to be taken) says, "that this
notion, though advanced by so great a man, is contrary to religion,
common sense, and common humanity, and I think the devils, to whom he
has delivered them, could not have suggested anything worse."
Chief-Justice Willes, admitting Lord Coke to be a great lawyer, then
proceeds in very strong terms, and with marks of contempt, to condemn
"_his narrow notions_"; and he treats with as little respect or decorum
the ancient authorities referred to in defence of such notions.
The principle of the departure from those rules is clearly fixed by Lord
Hardwicke; he lays it down as follows:--"The first ground judges have
gone upon, in departing from strict rules, is _absolute strict
necessity_; 2dly, a _presumed_ necessity." Of the first he gives these
instances:--"In the case of writings subscribed by witnesses, if all are
dead, the proof of one of their hands is sufficient to establish the
deed. Where an original is lost, a copy may be admitted; if no copy,
then a proof by witnesses who have _heard_ the deed: and yet it is a
thing the law abhors, to admit the memory of man for evidence." This
enlargement through two stages of proof, both of them contrary to the
rule of law, and both abhorrent from its principles, are by this great
judge accumulated upon one another, and are admitted from _necessity_,
to accommodate human affairs, and to prevent that which courts are by
every possible means instituted to prevent,--A FAILURE OF JUSTICE. And
this necessity is not confined within the strict limits of physical
causes, but is more lax, and takes in _moral and even presumed and
argumentative necessity_, a necessity which is in fact nothing more than
a great degree of expediency. The law creates a fictitious necessity
against the rules of evidence in favor of the convenience of trade: an
exception which on a similar principle had before been admitted in the
Civil Law, as to mercantile causes, in which the books of the party were
received to give full effect to an insufficient degree of proof, called,
in the nicety of their distinctions, a _semiplena probatio_.[52]
But to proceed with Lord Hardwicke. He observes, that "a tradesman's
books" (that is, the acts of the party interested himself) "are admitted
as evidence, though no _absolute necessity_, but by reason of a
_presumption_ of necessity only, _inferred_ from the nature of
commerce." "No rule," continued Lord Hardwicke, "can be more settled
than that testimony is not to be received but upon oath"; but he lays it
down, that an oath itself may be dispensed with. "There is another
instance," says he, "where the lawful oath may be dispensed with,--where
our courts admit evidence for the Crown without oath."
In the same discussion, the Chief-Baron (Parker) cited cases in which
_all_ the rules of evidence had given way. "There is not a more general
rule," says he, "than that hearsay cannot be admitted, nor husband and
wife as witnesses against each other; and yet it is _notorious_ that
from necessity they have been allowed,--not an _absolute_ necessity, but
a _moral_ one."
It is further remarkable, in this judicial argument, that exceptions are
allowed not only to rules of evidence, but that the rules of evidence
themselves are not altogether the same, where the subject-matter varies.
The Judges have, to facilitate justice, and to favor commerce, even
adopted the rules of _foreign_ laws. They have taken for granted, and
would not suffer to be questioned, the regularity and justice of the
proceedings of foreign courts; and they have admitted them as evidence,
not only of the fact of the decision, but of the right as to its
legality. "Where there are foreign parties interested, and in commercial
matters, the rules of evidence are not quite the same as in other
instances in courts of justice: the case of Hue and Cry, Brownlow, 47. A
feme covert is not a lawful witness against her husband, except in cases
of treason, but has been admitted in civil cases.[53] The testimony of
a public notary is evidence by the law of France: contracts are made
before a public notary, and no other witness necessary. I should think
it would be no doubt at all, if it came in question here, whether this
would be a valid contract, but a testimony from persons of that credit
and reputation would be received as a very good proof in foreign
transactions, and would authenticate the contract."[54]
These cases show that courts always govern themselves by these rules in
cases of foreign transactions. To this principle Lord Hardwicke accords;
and enlarging the rule of evidence by the nature of the subject and the
exigencies of the case, he lays it down, "that it is a common and
_natural_ presumption, that persons of the Gentoo religion should be
principally apprised of facts and transactions in their own country. As
the English have only a factory in this country, (for it is in the
empire of the Great Mogul,) if we should admit this evidence [Gentoo
evidence on a Gentoo oath], it would be agreeable to the genius of the
law of England." For this he cites the proceedings of our Court of
Admiralty, and adopts the author who states the precedent, "that this
Court will give credit to the sentence of the Court of Admiralty in
France, and take it to be according to right, and will not examine their
proceedings: for it would be found very inconvenient, if one kingdom
should, by peculiar laws, correct the judgments and proceedings of
another kingdom." Such is the genius of the law of England, that these
two principles, of the general moral necessities of things, and the
nature of the case, overrule every other principle, even those rules
which seem the very strongest. Chief-Baron Parker, in answer to an
objection made against the infidel deponent, "that the plaintiff ought
to have shown that he could not have the evidence of Christians," says,
"that, repugnant to natural justice, in the Statute of Hue and Cry, the
robbed is admitted to be witness of the robbery, as _a moral or presumed
necessity is sufficient_." The same learned magistrate, pursuing his
argument in favor of liberality, in opening and enlarging the avenues to
justice, does not admit that "the authority of one or two cases" is
valid against reason, equity, and convenience, the vital principles of
the law. He cites Wells _v._ Williams, 1 Raymond, 282, to show that the
necessity of trade has mollified the too rigorous rules of the old law,
in their restraint and discouragement of aliens. "A Jew may sue at
_this_ day, but _heretofore he could not_, for then they were looked
upon as enemies, but now commerce has taught the world more humanity;
and therefore held that an alien enemy, commorant here by the license of
the King, and under his protection, may maintain a debt upon a bond,
though he did not come with safe-conduct." So far Parker, concurring
with Raymond. He proceeds:--"It was objected by the defendant's counsel,
that this is a novelty, and that what never has been done ought not to
be done." The answer is, "_The law of England is not confined to
particular cases, but is much more governed by reason than by any one
case whatever._ The true rule is laid down by Lord Vaughan, fol. 37,
38. 'Where the law,' saith he, 'is _known and clear_, the Judges must
determine as the law is, without regard to the inequitableness or
inconveniency: these defects, if they happen in the law, can only be
remedied by Parliament. But where the law is doubtful and not clear, the
Judges ought to interpret the law to be as is most consonant to equity,
and what is least inconvenient.'"
These principles of equity, convenience, and natural reason Lord
Chief-Justice Lee considered in the same ruling light, not only as
guides in matter of interpretation concerning law in general, but in
particular as controllers of the whole law of evidence, which, being
artificial, and made for convenience, is to be governed by that
convenience for which it is made, and is to be wholly subservient to the
stable principles of substantial justice, "I do apprehend," said that
Chief-Justice, "that the rules of evidence are to be considered as
_artificial_ rules, framed by men for _convenience in courts of
justice_. This is a case that ought to be looked upon in that light; and
I take it that considering evidence in this way [viz. according to
natural justice] _is agreeable to the genius of the law of England_."
The sentiments of Murray, then Solicitor-General, afterwards Lord
Mansfield, are of no small weight in themselves, and they are authority
by being judicially adopted. His ideas go to the growing melioration of
the law, by making its liberality keep pace with the demands of justice
and the actual concerns of the world: not restricting the infinitely
diversified occasions of men and the rules of natural justice within
artificial circumscriptions, but conforming our jurisprudence to the
growth of our commerce and of our empire. This enlargement of our
concerns he appears, in the year 1744, almost to have foreseen, and he
lived to behold it. "The arguments on the other side," said that great
light of the law, (that is, arguments against admitting the testimony in
question from the novelty of the case,) "prove nothing. Does it follow
from thence, that no witnesses can be examined in a case that never
specifically existed before, or that an action cannot be brought in a
case that never happened before? _Reason_ (being stated to be the first
ground of all laws by the author of the book called 'Doctor and
Student') must determine the case. Therefore the only question is,
Whether, _upon principles of reason, justice, and convenience_, this
witness be admissible? Cases in law depend upon the _occasions_ which
gave rise to them. All occasions do not arise at once: now a particular
species of Indians appears; hereafter another species of Indians may
arise. A statute can seldom take in all cases. Therefore the Common Law,
that works itself pure by rules drawn from the fountain of justice, is
for this reason superior to an act of Parliament."[55]
From the period of this great judgment to the trial of Warren Hastings,
Esquire, the law has gone on continually working itself pure (to use
Lord Mansfield's expression) by rules drawn from the fountain of
justice. "General rules," said the same person, when he sat upon the
bench, "are wisely established for attaining justice with ease,
certainty, and dispatch; but the great end of them being _to do
justice_, the Court will see that it be really obtained. The courts have
been more liberal of late years in their determinations, and have more
endeavored to attend to the _real justice_ of the case than formerly."
On another occasion, of a proposition for setting aside a verdict, he
said, "This seems to be the true way to come at justice, and what we
therefore ought to do; for the true text is, _Boni judicis est ampliare
justitiam_ (not _jurisdictionem_, as has been often cited)."[56] In
conformity to this principle, the supposed rules of evidence have, in
late times and judgments, instead of being drawn to a greater degree of
strictness, been greatly relaxed.
"_All evidence is according to the subject-matter to which it is
applied._ There is a great deal of difference between length of time
that operates as a bar to a claim and that which is used only by way of
evidence. Length of time used merely by way of evidence may be left to
the consideration of the jury, to be credited or not, or to draw their
inferences one way or the other, according to circumstances. _I do not
know an instance in which proof may not be supplied._"[57] In all cases
of evidence Lord Mansfield's maxim was, _to lean to admissibility_,
leaving the objections which were made to competency to go to credit,
and to be weighed in the minds of the jury after they had heard it.[58]
In objections to wills, and to the testimony of witnesses to them, he
thought "it clear that the Judges ought to lean _against_ objections to
the formality."[59]
Lord Hardwicke had before declared, with great truth, "that the
boundaries of what goes to the credit and what to the competency _are
very nice, and the latter carried too far_"; and in the same case he
said, "that, unless the objection appeared to him to carry a strong
danger of perjury, and some apparent advantage might accrue to the
witness, he was always inclined to let it go to his credit, only _in
order to let in a proper light to the case, which would otherwise be
shut out_; and _in a doubtful case_, he said, it was generally his
custom _to admit the evidence_, and give such directions to the jury as
the nature of the case might require."[60]
It is a known rule of evidence, that an interest in the matter to be
supported by testimony disqualifies a witness; yet Lord Mansfield held,
"that _nice_ objections to a remote interest which could not be paid or
released, though they held in other cases, were not allowed to
disqualify a witness to a will, as parishioners might have [prove?] a
devise to the use of the poor of the parish forever." He went still
nearer, and his doctrine tends so fully to settle the principles of
departure from or adherence to rules of evidence, that your Committee
inserts part of the argument at large. "The disability of a witness from
interest is very different from a positive incapacity. If a deed must be
acknowledged before a judge or notary public, every other person is
under a positive incapacity to authenticate it; but objections of
interest are deductions from natural reason, and proceed upon a
presumption of too great a bias in the mind of the witness, and the
public utility of rejecting partial testimony. Presumptions stand no
longer than till the contrary is proved. The presumption of bias may be
taken off by showing the witness has a [as?] great or a greater
interest the other way, or that he has given it up. The presumption of
public utility may be answered by showing that it would be very
inconvenient, under the particular circumstances, not to receive such
testimony. Therefore, from the course of business, necessity, and other
reasons of expedience, _numberless exceptions_ are allowed to the
_general_ rule."[61]
These being the principles of the latter jurisprudence, the Judges have
suffered no positive rule of evidence to counteract those principles.
They have even suffered subscribing witnesses to a will which recites
the soundness of mind in the testator to be examined to prove his
insanity, and then the court received evidence to overturn that
testimony and to destroy the credit of those witnesses. They were five
in number, who attested to a will and codicil. They were admitted to
annul the will they had themselves attested. Objections were taken to
the competency of one of the witnesses in support of the will against
its subscribing witnesses: 1st, That the witness was an executor in
trust, and so liable to actions; 2dly, As having acted under the trust,
whereby, if the will were set aside, he would be liable to answer for
damages incurred by the sale of the deceased's chambers to a Mr.
Frederick. Mr. Frederick offered to submit to a rule to release, for the
sake of public justice. Those who maintained the objection cited
Siderfin, a reporter of much authority, 51, 115, and 1st Keble, 134.
Lord Mansfield, Chief-Justice, did not controvert those authorities; but
in the course of obtaining substantial justice he treated both of them
with equal contempt, though determined by judges of high reputation.
His words are remarkable: "We do not _now_ sit here to take our rules of
evidence from Siderfin and Keble." He overruled the objection upon more
recent authorities, which, though not in similar circumstances, he
considered as within the reason. The Court did not think it necessary
that the witness should release, as he had offered to do. "It appeared
on this trial," says Justice Blackstone, "that a black conspiracy was
formed to set aside the gentleman's will, without any foundation
whatever." A prosecution against three of the testamentary witnesses was
recommended, who were afterwards convicted of perjury.[62] Had strict
formalities with regard to evidence been adhered to in any part of this
proceeding, that very black conspiracy would have succeeded, and those
black conspirators, instead of receiving the punishment of their crimes,
would have enjoyed the reward of their perjury.
Lord Mansfield, it seems, had been misled, in a certain case, with
regard to precedents. His opinion was against the reason and equity of
the supposed practice, but he supposed himself not at liberty to give
way to his own wishes and opinions. On discovering his error, he
considered himself as freed from an intolerable burden, and hastened to
undo his former determination. "There are no precedents," said he, with
some exultation, "which stand in the way of our determining _liberally_,
_equitably_, and according to the _true_ intention of the parties." In
the same case, his learned assessor, Justice Wilmot, felt the same
sentiments. His expressions are remarkable:--"Courts of law ought to
concur with courts of equity in the execution of those powers which are
very convenient to be inserted in settlements; and they ought not to
listen to nice distinctions that savor of the schools, but to be guided
by true good sense and manly reason. After the Statute of Uses, it is
much to be lamented that the courts of Common Law had not adopted all
the rules and maxims of courts of equity. This would have prevented the
absurdity of receiving costs in one court and paying them in
another."[63]
Your Committee does not produce the doctrine of this particular case as
directly applicable to their charge, no more than several of the others
here cited. We do not know on what precedents or principles the evidence
proposed by us has been deemed inadmissible by the Judges; therefore
against the grounds of this rejection we find it difficult directly to
oppose anything. These precedents and these doctrines are brought to
show the general temper of the courts, their growing liberality, and the
general tendency of all their reasonings and all their determinations to
set aside all such technical subtleties or formal rules, which might
stand in the way of the discovery of truth and the attainment of
justice. The cases are adduced for the principles they contain.
The period of the cases and arguments we have cited was that in which
large and liberal principles of evidence were more declared, and more
regularly brought into system. But they had been gradually improving;
and there are few principles of the later decisions which are not to be
found in determinations on cases prior to the time we refer to. Not to
overdo this matter, and yet to bring it with some degree of clearness
before the House, your Committee will refer but to a few authorities,
and those which seem most immediately to relate to the nature of the
cause intrusted to them. In Michaelmas, 11 Will. III., the King _v._ the
Warden of the Fleet, a witness, who had really been a prisoner, and
voluntarily suffered to escape, was produced to prove the escape. To the
witness it was objected, that he had given a bond to be a true prisoner,
which he had forfeited by escaping: besides, he had been retaken. His
testimony was allowed; and by the Court, among other things, it was
said, in secret transactions, if any of the parties concerned are not to
be, for the necessity of the third, admitted as evidence, it will be
impossible to detect the practice: as in cases of the Statute of Hue and
Cry, the party robbed shall be a witness to charge the hundred; and in
the case of Cooke _v._ Watts in the Exchequer, where one who had been
prejudiced by the will was admitted an evidence to prove it forged.[64]
So in the case of King _v._ Parris,[65] where a feme covert was admitted
as a witness for _fraudulently_ drawing her in, when sole, to give a
warrant of attorney for confessing a judgment on an unlawful
consideration, whereby execution was sued out against her husband, and
Holt, Chief-Justice, held that a feme covert could not, by law, be a
witness to convict one on an information; yet, in Lord Audley's case, it
being a rape on her person, she was received to give evidence against
him, and the Court concurred with him, because it was the best evidence
the nature of the thing would allow. This decision of Holt refers to
others more early, and all on the same principle; and it is not of this
day that this one great principle of eminent public expedience, this
moral necessity, "that crimes should not escape with impunity,"[66] has
in all cases overborne all the common juridical rules of evidence,--it
has even prevailed over the first and most natural construction of acts
of Parliament, and that in matters of so penal a nature as high treason.
It is known that statutes made, not to open and enlarge, but on fair
grounds to straiten proofs, require two witnesses in cases of high
treason. So it was understood, without dispute and without distinction,
until the argument of a case in the High Court of Justice, during the
Usurpation. It was the case of the Presbyterian minister, Love, tried
for high treason against the Commonwealth, in an attempt to restore the
King. In this trial, it was contended for, and admitted, that one
witness to one overt act, and one to another overt act of the same
treason, ought to be deemed sufficient.[67] That precedent, though
furnished in times from which precedents were cautiously drawn, was
received as authority throughout the whole reign of Charles II.; it was
equally followed after the Revolution; and at this day it is undoubted
law. It is not so from the natural or technical rules of construction of
the act of Parliament, but from the principles of juridical policy. All
the judges who have ruled it, all the writers of credit who have written
upon it, assign this reason, and this only,--_that treasons, being
plotted in secrecy, could in few cases be otherwise brought to
punishment_.
The same principle of policy has dictated a principle of relaxation
with regard to severe rules of evidence, in all cases similar, though of
a lower order in the scale of criminality. It is against fundamental
maxims that an accomplice should be admitted as a witness: but
accomplices are admitted from the policy of justice, otherwise
confederacies of crime could not be dissolved. There is no rule more
solid than that a man shall not entitle himself to profit by his own
testimony. But an informer, in case of highway robbery, may obtain forty
pounds to his own profit by his own evidence: this is not in consequence
of positive provision in the act of Parliament; it is a provision of
policy, lest the purpose of the act should be defeated.
Now, if policy has dictated this very large construction of an act of
Parliament concerning high treason, if the same policy has dictated
exceptions to the clearest and broadest rules of evidence in other
highly penal causes, and if all this latitude is taken concerning
matters for the greater part within our insular bounds, your Committee
could not, with safety to the larger and more remedial justice of the
Law of Parliament, admit any rules or pretended rules, unconnected and
uncontrolled by circumstances, to prevail in a trial which regarded
offences of a nature as difficult of detection, and committed far from
the sphere of the ordinary practice of our courts.
If anything of an over-formal strictness is introduced into the trial of
Warren Hastings, Esquire, it does not seem to be copied from the
decisions of these tribunals. It is with great satisfaction your
Committee has found that the reproach of "disgraceful subtleties,"
inferior rules of evidence which prevent the discovery of truth, of
forms and modes of proceeding which stand in the way of that justice the
forwarding of which is the sole rational object of their invention,
cannot fairly be imputed to the Common Law of England, or to the
ordinary practice of the courts below.
CIRCUMSTANTIAL EVIDENCE, ETC.
The rules of evidence in civil and in criminal cases, in law and in
equity, being only reason methodized, are certainly the same. Your
Committee, however, finds that the far greater part of the law of
evidence to be found in our books turns upon questions relative to civil
concerns. Civil cases regard property: now, although property itself is
not, yet almost everything concerning property and all its modifications
is, of artificial contrivance. The rules concerning it become more
positive, as connected with positive institution. The legislator
therefore always, the jurist frequently, may ordain certain methods by
which alone they will suffer such matters to be known and established;
because their very essence, for the greater part, depends on the
arbitrary conventions of men. Men act on them with all the power of a
creator over his creature. They make fictions of law and presumptions of
(_præsumptiones juris et de jure_) according to their ideas of utility;
and against those fictions, and against presumptions so created, they do
and may reject all evidence. However, even in these cases there is some
restraint. Lord Mansfield has let in a liberal spirit against the
fictions of law themselves; and he declared that he would do what in one
case[68] he actually did, and most wisely, that he would admit evidence
against a fiction of law, when the fiction militated against the policy
on which it was made.
Thus it is with things which owe their existence to men; but where the
subject is of a physical nature, or of a moral nature, independent of
their conventions, men have no other reasonable authority than to
register and digest the results of experience and observation. Crimes
are the actions of physical beings with an evil intention abusing their
physical powers against justice and to the detriment of society: in this
case fictions of law and artificial presumptions (_juris et de jure_)
have little or no place. The presumptions which belong to criminal cases
are those natural and popular presumptions which are only observations
turned into maxims, like adages and apophthegms, and are admitted (when
their grounds are established) in the place of proof, where better is
wanting, but are to be always over turned by counter proof.
These presumptions mostly go to the _intention_. In all criminal cases,
the crime (except where the law itself implies malice) consists rather
in the intention than the action. Now the intention is proved but by two
ways: either, 1st, by confession,--this first case is rare, but
simple,--2dly, by circumstantial proof,--this is difficult, and requires
care and pains. The connection of the intention and the circumstances is
plainly of such a nature as more to depend on the sagacity of the
observer than on the excellence of any rule. The pains taken by the
Civilians on that subject have not been very fruitful; and the English
law-writers have, perhaps as wisely, in a manner abandoned the pursuit.
In truth, it seems a wild attempt to lay down any rule for the proof of
intention by circumstantial evidence. All the acts of the party,--all
things that explain or throw light on these acts,--all the acts of
others relative to the affair, that come to his knowledge, and may
influence him,--his friendships and enmities, his promises, his threats,
the truth of his discourses, the falsehood of his apologies, pretences,
and explanations, his looks, his speech, his silence where he was called
to speak,--everything which tends to establish the connection between
all these particulars,--every circumstance, precedent, concomitant, and
subsequent, become parts of circumstantial evidence. These are in their
nature infinite, and cannot be comprehended within any rule or brought
under any classification.
Now, as the force of that presumptive and conjectural proof rarely, if
ever, depends on one fact only, but is collected from the number and
accumulation of circumstances concurrent in one point, we do not find an
instance, until this trial of Warren Hastings, Esquire, (which has
produced many novelties,) that attempts have been made by any court to
call on the prosecutor for an account of the purpose for which he means
to produce each particle of this circumstantial evidence, to take up the
circumstances one by one, to prejudge the efficacy of each matter
separately in proving the point,--and thus to break to pieces and to
garble those facts, upon the multitude of which, their combination, and
the relation of all their component parts to each other and to the
culprit, the whole force and virtue of this evidence depends. To do
anything which can destroy this collective effect is to deny
circumstantial evidence.
Your Committee, too, cannot but express their surprise at the particular
period of the present trial when the attempts to which we have alluded
first began to be made. The two first great branches of the accusation
of this House against Warren Hastings, Esquire, relate to public and
notorious acts, capable of direct proof,--such as the expulsion of Cheyt
Sing, with its consequences on the province of Benares, and the seizure
of the treasures and jaghires of the Begums of Oude. Yet, in the proof
of those crimes, your Committee cannot justly complain that we were very
narrowly circumscribed in the production of much circumstantial as well
as positive evidence. We did not find any serious resistance on this
head, till we came to make good our charges of secret crimes,--crimes of
a class and description in the proof of which all judges of all
countries have found it necessary to relax almost all their rules of
competency: such crimes as peculation, pecuniary frauds, extortion, and
bribery. Eight out of nine of the questions put to the Judges by the
Lords, in the first stage of the prosecution, related to circumstances
offered in proof of these secret crimes.
Much industry and art have been used, among the illiterate and
unexperienced, to throw imputations on this prosecution, and its
conduct, because so great a proportion of the evidence offered on this
trial (especially on the latter charges) has been circumstantial.
Against the prejudices of the ignorant your Committee opposes the
judgment of the learned. It is known to them, that, when this proof is
in its greatest perfection, that is, when it is most abundant in
circumstances, it is much superior to positive proof; and for this we
have the authority of the learned judge who presided at the trial of
Captain Donellan. "On the part of the prosecution, a great deal of
evidence has been laid before you. It is _all_ circumstantial evidence,
and in its nature it must be so: for, in cases of this sort, no man is
weak enough to commit the act in the presence of other persons, or to
suffer them to see what he does at the time; and therefore it can only
be made out by circumstances, either before the committing of the act,
at the time when it was committed, or subsequent to it. And a
presumption, which necessarily arises from circumstances, is very often
more convincing and more satisfactory than any other kind of evidence:
because it is not within the reach and compass of human abilities to
invent a train of circumstances which shall be so connected together as
to amount to a proof of guilt, without affording opportunities of
contradicting a great part, if not all, of these circumstances. But if
the circumstances are such as, when laid together, bring conviction to
your minds, it is then fully equal, if not, as I told you before, _more_
convincing than positive evidence." In the trial of Donellan no such
selection was used as we have lately experienced; no limitation to the
production of every matter, before, at, and after the fact charged. The
trial was (as we conceive) rightly conducted by the learned judge;
because secret crimes, such as secret assassination, poisoning, bribery,
peculation, and extortion, (the three last of which this House has
charged upon Mr. Hastings,) can very rarely be proved in any other way.
That way of proof is made to give satisfaction to a searching,
equitable, and intelligent mind; and there must not be a failure of
justice. Lord Mansfield has said that he did not know a case in which
proof might not be supplied.[69]
Your Committee has resorted to the trial of Donellan, and they have and
do much rely upon it, first, on account of the known learning and
ability of the judge who tried the cause, and the particular attention
he has paid to the subject of evidence, which forms a book in his
treatise on _Nisi Prius_;--next, because, as the trial went _wholly_ on
circumstantial evidence, the proceedings in it furnish some of the most
complete and the fullest examples on that subject;--thirdly, because the
case is recent, and the law cannot be supposed to be materially altered
since the time of that event.
Comparing the proceedings on that trial, and the doctrines from the
bench, with the doctrines we have heard from the woolsack, your
Committee cannot comprehend how they can be reconciled. For the Lords
compelled the Managers to declare for what purpose they produced each
separate member of their circumstantial evidence: a thing, as we
conceive, not usual, and particularly not observed in the trial of
Donellan. We have observed in that trial, and in most others which we
have had occasion to resort to, that the prosecutor is suffered to
proceed narratively and historically, without interruption. If, indeed,
it appears on the face of the narration that what is represented to have
been said, written, or done did not come to the knowledge of the
prisoner, a question sometimes, but rarely, has been asked, whether the
prisoner could be affected with the knowledge of it. When a connection
with the person of the prisoner has been in any way shown, or even
promised to be shown, the evidence is allowed to go on without further
opposition. The sending of a sealed letter,--the receipt of a sealed
letter, inferred from the delivery to the prisoner's servant,--the bare
possession of a paper written by any other person, on the presumption
that the contents of such letters or such paper were known to the
prisoner,--and the being present when anything was said or done, on the
presumption of his seeing or hearing what passed, have been respectively
ruled to be sufficient. If, on the other hand, no circumstance of
connection has been proved, the judge, in summing up, has directed the
jury to pay no regard to a letter or conversation the proof of which has
so failed: a course much less liable to inconvenience, where the same
persons decide both the law and the fact.[70]
To illustrate the difficulties to which your Committee was subjected on
this head, we think it sufficient to submit to the House (reserving a
more full discussion of this important point to another occasion) the
following short statement of an incident which occurred in this trial.
By an express order of the Court of Directors, (to which, by the express
words of the act of Parliament under which he held his office, he was
ordered to yield obedience,) Mr. Hastings and his colleagues were
directed to make an inquiry into all offences of bribery and corruption
in office. On the 11th of March a charge in writing of bribery and
corruption in office was brought against himself. On the 13th of the
same month, the accuser, a man of high rank, the Rajah Nundcomar,
appears personally before the Council to make good his charge against
Mr. Hastings before his own face. Mr. Hastings thereon fell into a very
intemperate heat, obstinately refused to be present at the examination,
attempted to dissolve the Council, and contumaciously retired from it.
Three of the other members, a majority of the Council, in execution of
their duty, and in obedience to the orders received under the act of
Parliament, proceeded to take the evidence, which is very minute and
particular, and was entered in the records of the Council by the regular
official secretary. It was afterwards read in Mr. Hastings's own
presence, and by him transmitted, under his own signature, to the Court
of Directors. A separate letter was also written by him, about the same
time, desiring, on his part, that, in any inquiry into his conduct, "not
a single word should escape observation." This proceeding in the Council
your Committee, in its natural order, and in a narrative chain of
circumstantial proof, offered in evidence. It was not permitted to be
read; and on the 20th and 21st of May, 1789, we were told from the
woolsack, "that, when a paper is not evidence by itself," (such this
part of the Consultation, it seems, was reputed,) "a party who wishes to
introduce a paper of that kind is called upon not only to state, but to
make out on proof, _the whole of the grounds upon which he proceeds to
make that paper proper evidence_; that the evidence that is produced
must be _the demeanor_ of the party respecting that paper; and it is the
connection between them, _as material to the charge depending_, that
will enable them to be produced."
Your Committee observes, that this was not a paper _foreign_ to the
prisoner, and sent to him as _a letter_, the receipt of which, and his
conduct thereon, were to be brought home to him, to infer his guilt from
his demeanor. It was an office document of his own department,
concerning himself, and kept by officers of his own, and by himself
transmitted, as we have said, to the Court of Directors. Its proof was
in the record. The charge made against him, and his demeanor on being
acquainted with it, were not in separate evidence. They all lay
together, and composed a connected narrative of the business,
authenticated by himself.
In that case it seems to your Committee extremely irregular and
preposterous to demand previous and extraneous proofs of the demeanor of
the party respecting the paper, and the connection between them, as
_material to the charge_ depending; for this would be to try what the
effect and operation of the evidence would be on the issue of the cause,
before its production.
The doctrine so laid down demands that every several circumstance should
in itself be conclusive, or at least should afford a violent
presumption: it must, we were told, without question, be material to the
charge depending. But, as we conceive, its materiality, more or less, is
not in the first instance to be established. To make it admissible, it
is enough to give proof, or to raise a legal inference, of its
connection both with the charge depending and the person of the party
charged, where it does not appear on the face of the evidence offered.
Besides, by this new doctrine, the materiality required to be shown must
be decided from a consideration, not of the whole circumstance, but in
truth of one half of the circumstance,--of a demeanor unconnected with
and unexplained by that on which it arose, though the connection between
the demeanor of the party and the paper is that which must be shown to
be material. Your Committee, after all they have heard, is yet to learn
how the full force and effect of any demeanor, as evidence of guilt or
innocence, can be known, unless it be also fully known _to what that
demeanor applied_,--unless, when a person did or said anything, it be
known, not generally and abstractedly, that a paper was read to him, but
particularly and specifically _what were the contents of that paper_:
whether they were matters lightly or weightily alleged,--within the
power of the party accused to have confuted on the spot, if false,--or
such as, though he might have denied, he could not instantly have
disproved. The doctrine appeared and still appears to your Committee to
be totally abhorrent from the genius of circumstantial evidence, and
mischievously subversive of its use. We did, however, offer that
extraneous proof which was demanded of us; but it was refused, as well
as the office document.
Your Committee thought themselves the more bound to contend for every
mode of evidence _to the intention,_ because in many of the cases the
gross fact was admitted, and the prisoner and his counsel set up
pretences of public necessity and public service for his justification.
No way lay open for rebutting this justification, but by bringing out
all the circumstances attendant on the transaction.
ORDER AND TIME OF PRODUCING EVIDENCE.
Your Committee found great impediment in the production of evidence, not
only on account of the general doctrines supposed to exist concerning
its inadmissibility, drawn from its own alleged natural incompetency, or
from its inapplicability under the pleading of the impeachment of this
House, but also from the mode of proceeding in bringing it forward. Here
evidence which we thought necessary to the elucidation of the cause was
not suffered, upon the supposed rules of _examination in chief and
cross-examination_, and on supposed rules forming a distinction between
evidence _originally_ produced on the charge and evidence offered on
_the reply_.
On all these your Committee observes in general, that, if the rules
which respect the substance of the evidence are (as the great lawyers on
whose authority we stand assert they are) no more than rules of
convenience, much more are those subordinate rules which regard the
order, the manner, and the time of the arrangement. These are purely
arbitrary, without the least reference to any fixed principle in the
nature of things, or to any settled maxim of jurisprudence, and
consequently are variable at every instant, as the conveniencies of the
cause may require.
We admit, that, in the order of mere arrangement, there is a difference
between examination of witnesses in chief and cross-examination, and
that in general these several parts are properly cast according to the
situation of the parties in the cause; but there neither is nor can be
any precise rule to discriminate the exact bounds between examination
and cross-examination. So as to time there is necessarily some limit,
but a limit hard to fix. The only one which can be fixed with any
tolerable degree of precision is when the judge, after fully hearing all
parties, is to consider of his verdict or his sentence. Whilst the cause
continues under hearing in any shape, or in any stage of the process, it
is the duty of the judge to receive every offer of evidence, apparently
material, suggested to him, though the parties themselves, through
negligence, ignorance, or corrupt collusion, should not bring it
forward. A judge is not placed in that high situation merely as a
passive instrument of parties. He has a duty of his own, independent of
them, and that duty is to investigate the truth. There may be no
prosecutor. In our law a permanent prosecutor is not of necessity. The
Crown prosecutor in criminal cases is a grand jury; and this is
dissolved instantly on its findings and its presentments. But if no
prosecutor appears, (and it has happened more than once,) the court is
obliged through its officer, the clerk of the arraigns, to examine and
cross-examine every witness who presents himself; and the judge is to
see it done effectually, and to act his own part in it,--and this as
long as evidence shall be offered within the time which the mode of
trial will admit.
Your Committee is of opinion, that, if it has happened that witnesses,
or other kinds of evidence, have not been frequently produced after the
closing of the prisoner's defence, or such evidence has not been in
reply given, it has happened from the peculiar nature of our common
judicial proceedings, in which all the matter of evidence must be
presented whilst the bodily force and the memory or other mental
faculties of men can hold out. This does not exceed the compass of one
natural day, or thereabouts: during that short space of time new
evidence very rarely occurs for production by any of the parties;
because the nature of man, joined to the nature of the tribunals, and of
the mode of trial at Common Law, (good and useful on the whole,)
prescribe limits which the mere principles of justice would of
themselves never fix.
But in other courts, such as the Court of Chancery, the Courts of
Admiralty Jurisdiction, (except in prize causes under the act of
Parliament,) and in the Ecclesiastical Courts, wherein the trial is not
by an inclosed jury in those courts, such strait limits are not of
course necessary: the cause is continued by many adjournments; as long
as the trial lasts, new witnesses are examined (even after the regular
stage) for each party, on a special application under the circumstances
to the sound discretion of the court, where the evidence offered is
newly come to the knowledge or power of the party, and appears on the
face of it to be material in the cause. _Even after hearing_, new
witnesses have been examined, or former witnesses reëxamined, not as the
right of the parties, but _ad informandam conscientiam judicis_.[71] All
these things are not unfrequent in some, if not in all of these courts,
and perfectly known to the judges of Westminster Hall; who cannot be
supposed ignorant of the practice of the Court of Chancery, and who sit
to try appeals from the Admiralty and Ecclesiastical Courts as
delegates.
But as criminal prosecutions according to the forms of the Civil and
Canon Law are neither many nor important in any court of this part of
the kingdom, your Committee thinks it right to state the undisputed
principle of the Imperial Law, from the great writer on this subject
before cited by us,--from Carpzovius. He says, "that a doubt has arisen,
whether, evidence being once given in a trial on a public prosecution,
(_in processu inquisitorio_,) and the witnesses being examined, it may
be allowed to form other and new articles and to produce new witnesses."
Your Committee must here observe, that the _processus inquisitorius_ is
that proceeding in which the prosecution is carried on in the name of
the judge acting _ex officio_, from that duty of his office which is
called the _nobile officium judicis_. For the judge under the Imperial
Law possesses both those powers, the inquisitorial and the judicial,
which in the High Court of Parliament are more aptly divided and
exercised by the different Houses; and in this kind of process the House
will see that Carpzovius couples the production of new witnesses and the
forming of new articles (the undoubted privilege of the Commons) as
intimately and necessarily connected. He then proceeds to solve the
doubt. "Certainly," says he, "there are authors who deny, that, after
publication of the depositions, any new witnesses and proofs that can
affect the prisoner ought to be received; which," says he, "is true in a
case where a private prosecutor has intervened, who produces the
witnesses. But if the judge proceeds by way of inquisition _ex officio_,
then, even after the completion of the examination of witnesses against
the prisoner, new witnesses may be received and examined, and, on new
grounds of suspicion arising, new articles may be formed, according to
the common opinion of the doctors; and as it is the most generally
received, so it is most agreeable to reason."[72] And in another
chapter, relative to the ordinary criminal process by a private
prosecutor, he lays it down, on the authority of Angelus, Bartolus, and
others, that, after the right of the party prosecuting is expired, the
judge, taking up the matter _ex officio_, may direct new witnesses and
new proofs, even after publication.[73] Other passages from the same
writer and from others might be added; but your Committee trusts that
what they have produced is sufficient to show the general principles of
the Imperial Criminal Law.
The High Court of Parliament bears in its modes of proceeding a much
greater resemblance to the course of the Court of Chancery, the
Admiralty, and Ecclesiastical Courts, (which are the King's courts too,
and their law the law of the land,) than to those of the Common Law. The
accusation is brought into Parliament, at this very day, by _exhibiting
articles_; which your Committee is informed is the regular mode of
commencing a criminal prosecution, where the office of the judge is
promoted, in the Civil and Canon Law courts of this country. The answer,
again, is usually specific, both to the fact and the law alleged in each
particular article; which is agreeable to the proceeding of the Civil
Law, and not of the Common Law.
Anciently the resemblance was much nearer and stronger. Selden, who was
himself a great ornament of the Common Law, and who was personally
engaged in most of the impeachments of his time, has written expressly
on the judicature in Parliament. In his fourth chapter, intituled, _Of
Witnesses_, he lays down the practice of his time, as well as of ancient
times, with respect to the proof by examination; and it is clearly a
practice more similar to that of the Civil than the Common Law. "The
practice at this day," says he, "is to swear the witnesses in open
House, and then to examine them there, _or at a committee_, either upon
_interrogatories_ agreed upon in the House, or such as the committee in
their discretion shall demand. Thus it was in ancient times, as shall
appear by the precedents, so many as they are, they being very sparing
to record those ceremonies, which I shall briefly recite: I then add
those of later times."
Accordingly, in times so late as those of the trial of Lord
Middlesex,[74] upon an impeachment of the Commons, the whole course of
the proceeding, especially in the mode of adducing the evidence, was in
a manner the same as in the Civil Law: depositions were taken, and
publication regularly passed: and on the trial of Lord Strafford, both
modes pointed out by Selden seem to have been indifferently used.
It follows, therefore, that this high court (bound by none of their
rules) has a liberty to adopt the methods of any of the legal courts of
the kingdom at its discretion; and in _sound_ discretion it ought to
adopt those which bear the nearest resemblance to its own constitution,
to its own procedure, and to its exigencies in the promotion of justice.
There are conveniencies and inconveniencies both in the shorter and the
longer mode of trial. But to bring the methods observed (if such are in
fact observed) in the former, only from necessity, into the latter, by
choice, is to load it with the inconveniency of both, without the
advantages of either. The chief benefit of any process which admits of
adjournments is, that it may afford means of fuller information and more
mature deliberation. If neither of the parties have a strict right to
it, yet the court or the jury, as the case may be, ought to demand it.
Your Committee is of opinion, that all rules relative to laches or
neglects in a party to the suit, which may cause nonsuit on the one hand
or judgment by default in the other, all things which cause the party
_cadere in jure_, ought not to be adhered to in the utmost rigor, even
in civil cases; but still less ought that spirit which takes advantage
of lapses and failures on either part to be suffered to govern in causes
criminal. "Judges ought to _lean_ against every attempt to nonsuit a
plaintiff on objections which have no relation to the real merits. It is
unconscionable in a defendant to take advantage of the _apices
litigandi_: against such objections _every possible presumption ought to
be made which ingenuity can suggest_. How disgraceful would it be to the
administration of justice to allow chicane to obstruct right!"[75] This
observation of Lord Mansfield applies equally to every means by which,
indirectly as well as directly, the cause may fail upon any other
principles than those of its merits. He thinks that all the resources of
ingenuity ought to be employed to baffle chicane, not to support it. The
case in which Lord Mansfield has delivered this sentiment is merely a
civil one. In civil causes of _meum et tuum_, it imports little to the
commonwealth, whether _Titus_ or _Mævius_ profits of a legacy, or
whether _John à Nokes_ or _John à Stiles_ is seized of the manor of
_Dale_. For which reason, in many cases, the private interests of men
are left by courts to suffer by their own neglects and their own want of
vigilance, as their fortunes are permitted to suffer from the same
causes in all the concerns of common life. But in crimes, where the
prosecution is on the part of the public, (as all criminal prosecutions
are, except appeals,) the public prosecutor ought not to be considered
as a plaintiff in a cause of _meum et tuum_; nor the prisoner, in such a
cause, as a common defendant. In such a cause the state itself is highly
concerned in the event: on the other hand, the prisoner may lose life,
which all the wealth and power of all the states in the world cannot
restore to him. Undoubtedly the state ought not to be weighed against
justice; but it would be dreadful indeed, if causes of such importance
should be sacrificed to petty regulations, of mere secondary
convenience, not at all adapted to such concerns, nor even made with a
view to their existence. Your Committee readily adopts the opinion of
the learned Ryder, that it would be better, if there were no such rules,
than that there should be no exceptions to them. Lord Hardwicke declared
very properly, in the case of the Earl of Chesterfield against Sir
Abraham Janssen, "that political arguments, in the fullest sense of the
word, as they concerned the government of a nation, must be, and always
have been, of great weight in the consideration of this court. Though
there be no _dolus malus_ in contracts, with regard to other persons,
yet, if the rest of mankind are concerned as well as the parties, it
may be properly said, it regards the public utility."[76] Lord Hardwicke
laid this down in a cause of _meum et tuum_, between party and party,
where the public was concerned only remotely and in the example,--not,
as in this prosecution, when the political arguments are infinitely
stronger, the crime relating, and in the most eminent degree relating,
to the public.
One case has happened since the time which is limited by the order of
the House for this Report: it is so very important, that we think
ourselves justified in submitting it to the House without delay. Your
Committee, on the supposed rules here alluded to, has been prevented (as
of right) from examining a witness of importance in the case, and one on
whose supposed knowledge of his most hidden transactions the prisoner
had himself, in all stages of this business, as the House well knows,
endeavored to raise presumptions in favor of his cause. Indeed, it was
his principal, if not only justification, as to the _intention_, in many
different acts of corruption charged upon him. The witness to whom we
allude is Mr. Larkins. This witness came from India after your Committee
had closed the evidence of this House in chief, and could not be
produced before the time of the reply. Your Committee was not suffered
to examine him,--not, as they could find, on objections to the
particular question as improper, but upon some or other of the general
grounds (as they believe) on which Mr. Hastings resisted any evidence
from him. The party, after having resisted his production, on the next
sitting day admitted him, and by consent he was examined. Your
Committee entered a protest on the minutes in favor of their right. Your
Committee contended, and do contend, that, by the Law of Parliament,
whilst the trial lasts, they have full right to call new evidence, as
the circumstances may afford and the posture of the cause may demand it.
This right seems to have been asserted by the Managers for the Commons
in the case of Lord Stafford, 32 Charles II.[77] The Managers in that
case claimed it as the right of the Commons to produce witnesses for the
purpose of fortifying their former evidence. Their claim was admitted by
the court. It is an adjudged case in the Law of Parliament. Your
Committee is well aware that the notorious perjury and infamy of the
witnesses in the trial of Lord Stafford has been used to throw a shade
of doubt and suspicion on all that was transacted on that occasion. But
there is no force in such an objection. Your Committee has no concern in
the defence of these witnesses, nor of the Lords who found their verdict
on such testimony, nor of the morality of those who produced it. Much
may be said to palliate errors on the part of the prosecutors and
judges, from the heat of the times, arising from the great interests
then agitated. But it is plain there may be perjury in witnesses, or
even conspiracy unjustly to prosecute, without the least doubt of the
legality and regularity of the proceedings in any part. This is too
obvious and too common to need argument or illustration. The proceeding
in Lord Stafford's case never has, now for an hundred and fourteen
years, either in the warm controversies of parties, or in the cool
disquisitions of lawyers or historians, been questioned. The perjury of
the witnesses has been more doubted at some periods than the regularity
of the process has been at any period. The learned lawyer who led for
the Commons in that impeachment (Serjeant Maynard) had, near forty years
before, taken a forward part in the great cause of the impeachment of
Lord Strafford, and was, perhaps, of all men then in England, the most
conversant in the law and usage of Parliament. Jones was one of the
ablest lawyers of his age. His colleagues were eminent men.
In the trial of Lord Strafford, (which has attracted the attention of
history more than any other, on account of the importance of the cause
itself, the skill and learning of the prosecutors, and the eminent
abilities of the prisoner,) after the prosecutors for the Commons had
gone through their evidence on the articles, after the prisoner had also
made his defence, either upon each severally, or upon each body of
articles as they had been collected into one, and the Managers had in
the same manner replied, when, previous to the general concluding reply
of the prosecutors, the time of the general summing up (or recollection,
as it was called) of the whole evidence on the part of Lord Strafford
arrived, the Managers produced new evidence. Your Committee wishes to
call the particular attention of the House to this case, as the contest
between the parties did very nearly resemble the present, but
principally because the sense of the Lords on the Law of Parliament, in
its proceedings with regard to the reception of evidence, is there
distinctly laid down: so is the report of the Judges, relative to the
usage of the courts below, full of equity and reason, and in perfect
conformity with the right for which we contended in favor of the public,
and in favor of the Court of Peers itself. The matter is as follows.
Your Committee gives it at large.
"After this, the Lord Steward adjourned this House to Westminster Hall;
and the Peers being all set there in their places, the Lord Steward
commanded the Lieutenant of the Tower to bring forth the Earl of
Strafford to the bar; which being done, the Lord Steward signified that
both sides might make a recollection of their evidence, and the Earl of
Strafford to begin first.
"Hereupon Mr. Glynn desired that before the Earl of Strafford began,
that the Commons might produce two witnesses to the fifteenth and
twenty-third articles, to prove that there be two men whose names are
Berne; and so a mistake will be made clear. The Earl of Strafford
desired that no new witnesses may be admitted against him, unless he
might be permitted to produce witnesses on his part likewise; which the
Commons consented to, so the Earl of Strafford would confine himself to
those articles upon which he made reservations: but he not agreeing to
that, and the Commons insisting upon it, the House was adjourned to the
usual place above to consider of it; and after some debate, their
Lordships thought it fit that the members of the Commons go on in
producing new witnesses, as they shall think fit, to the fifteenth and
twenty-third articles, and that the Earl of Strafford may presently
produce such witnesses as are present, and such as are not, to name them
presently, and to proceed on Monday next; and also, if the Commons and
Earl of Strafford will proceed upon any other articles, upon new matter,
they are to name the witnesses and articles on both sides presently, and
to proceed on Monday next: but both sides may waive it, if they will.
The Lord Steward adjourned this House to Westminster Hall, and, being
returned thither, signified what the Lords had thought fit for the
better proceeding in the business. The Earl of Strafford, upon this,
desiring not to be limited to any reservation, but to be at liberty for
what articles are convenient for him to fortify with new witnesses,[78]
to which the Commons not assenting, and for other scruples which did
arise in the case, one of the Peers did desire that the House might be
adjourned, to consider further of the particulars. Hereupon the Lord
Steward adjourned the House to the usual place above.
"The Lords, being come up into the House, fell into debate of the
business, and, for the better informing of their judgments what was the
course and common justice of the kingdom, propounded this question to
the Judges: 'Whether it be according to the course of practice and
common justice, before the Judges in their several courts, for the
prosecutors in behalf of the King, _during the time of trial, to produce
witnesses to discover the truth_, and whether the prisoner may not do
the like?' The Lord Chief-Justice delivered this as the unanimous
opinions of himself and all the rest of the Judges: 'That, according to
the course of practice and common justice, before them in their several
courts, upon trial by jury, _as long as the prisoner is at the bar, and
the jury not sent away_, either side may give their evidence and examine
witnesses to discover truth; and this is all the opinion as we can give
concerning the proceedings before us.' Upon, some consideration after
this, the House appointed the Earl of Bath, Earl of South'ton, Earl of
Hartford, Earl of Essex, Earl of Bristol, and the Lord Viscount Say et
Seale to draw up some reasons upon which the former order was made,
which, being read as followeth, were approved of, as the order of the
House: 'The gentlemen of the House of Commons did declare, that they
challenge to themselves, by the common justice of the kingdom, that
they, being prosecutors for the King, may bring any new proofs by
witnesses during the time of the evidence being not fully concluded. The
Lords, being judges, and so equal to them and the prisoner, conceived
this their desire to be just and reasonable; and also that, by the same
common justice, the prisoner may use the same liberty; and that, to
avoid any occasions of delay, the Lords thought fit that the articles
and witnesses be presently named, and such as may be presently produced
to be used presently, [and such as cannot to be used on Monday,] and no
further time to be given.' The Lord Steward was to let them know, that,
if they will on both sides waive the use of new witnesses, they may
proceed to the recollection of their evidence on both sides; if both
sides will not waive it, then the Lord Steward is to read the precedent
order; and if they will not proceed then, this House is to adjourn and
rise."[79]
By this it will appear to the House how much this exclusion of evidence,
_brought for the discovery of truth_, is unsupported either by
Parliamentary precedent or by the rule as understood in the Common Law
courts below; and your Committee (protesting, however, against being
bound by any of the technical rules of inferior courts) thought, and
think, they had a right to see such a body of precedents and arguments
for the rejection of evidence during trial, in some court or other,
before they were in this matter stopped and concluded.
Your Committee has not been able to examine every criminal trial in the
voluminous collection of the State Trials, or elsewhere; but having
referred to the most laborious compiler of law and equity, Mr. Viner,
who has allotted a whole volume to the title of Evidence, we find but
one ruled case in a trial at Common Law, before or since, where new
evidence for the discovery of truth has been rejected, as not being in
due time. "A privy verdict had been given in B. R. 14 Eliz. for the
defendant; but afterwards, before the inquest gave their verdict openly,
the plaintiff prayed that he might give more evidence to the jury, he
having (as it seemed) discovered that the jury had found against him:
but the Justices would not admit him to do so; but after that Southcote
J. had been in C.B. to ask the opinion of the Justices there, they took
the verdict."[80] In this case the offer of new evidence was not during
the trial. The trial was over; the verdict was actually delivered to the
Judge; there was also an appearance that the discovery of the actual
finding had suggested to the plaintiff the production of new evidence.
Yet it appeared to the Judges so strong a measure to refuse evidence,
whilst any, even formal, appearance remained that the trial was not
closed, that they sent a Judge from the bench into the Common Pleas to
obtain the opinion of their brethren there, before they could venture to
take upon them to consider the time for production of evidence as
elapsed. The case of refusal, taken with its circumstances, is full as
strong an example in favor of the report of the Judges in Lord
Strafford's case as any precedent of admittance can be.
The researches of your Committee not having furnished them with any
cases in which evidence has been rejected during the trial, as being out
of time, we have found some instances in which it has been actually
received,--and received not to repel any new matter in the prisoner's
defence, but when the prisoner had called all his witnesses, and thereby
closed his defence. A remarkable instance occurred on the trial of
Harrison for the murder of Dr. Clenche. The Justices who tried the
cause, viz., Lord Chief-Justice Holt, and the Justices Atkins and Nevil,
admitted the prosecutor to call new evidence, for no other reason but
that a new witness was then come into court, who had not been in court
before.[81] These Justices apparently were of the same opinion on this
point with the Justices who gave their opinion in the case of Lord
Stafford.
Your Committee, on this point, as on the former, cannot discover any
authority for the decision of the House of Lords in the Law of
Parliament, or in the law practice of any court in this kingdom.
PRACTICE BELOW.
Your Committee, not having learned that the resolutions of the Judges
(by which the Lords have been guided) were supported by any authority in
law to which they could have access, have heard by rumor that they have
been justified upon the practice of the courts in ordinary trials by
commission of Oyer and Terminer. To give any legal precision to this
term of _practice_, as thus applied, your Committee apprehends it must
mean, that the judge in those criminal trials has so regularly rejected
a certain kind of evidence, when offered there, that it is to be
regarded in the light of a case frequently determined by legal
authority. If such had been discovered, though your Committee never
could have allowed these precedents as rules for the guidance of the
High Court of Parliament, yet they should not be surprised to see the
inferior judges forming their opinions on their own confined practice.
Your Committee, in their inquiry, has found comparatively few reports of
criminal trials, except the collection under the title of "State
Trials," a book compiled from materials of very various authority; and
in none of those which we have seen is there, as appears to us, a single
example of the rejection of evidence similar to that rejected by the
advice of the Judges in the House of Lords. Neither, if such examples
did exist, could your Committee allow them to apply directly and
necessarily, as a measure of reason, to the proceedings of a court
constituted so very differently from those in which the Common Law is
administered. In the trials below, the Judges decide on the competency
of the evidence before it goes to the jury, and (under the correctives,
in the use of their discretion, stated before in this Report) with great
propriety and wisdom. Juries are taken promiscuously from the mass of
the people. They are composed of men who, in many instances, in most
perhaps, never were concerned in any causes, judicially or otherwise,
before the time of their service. They have generally no previous
preparation, or possible knowledge of the matters to be tried, or what
is applicable or inapplicable to them; and they decide in a space of
time too short for any nice or critical disquisition. The Judges,
therefore, of necessity, must forestall the evidence, where there is a
doubt on its competence, and indeed observe much on its credibility, or
the most dreadful consequences might follow. The institution of juries,
if not thus qualified, could not exist. Lord Mansfield makes the same
observation with regard to another corrective of the short mode of
trial,--that of a _new trial_.
This is the law, and this its policy. The jury are not to decide on the
competency of witnesses, or of any other kind of evidence, in any way
whatsoever. Nothing of that kind can come before them. But the Lords in
the High Court of Parliament are not, either actually or virtually, a
jury. No legal power is interposed between them and evidence; they are
themselves by law fully and exclusively equal to it. They are persons of
high rank, generally of the best education, and of sufficient knowledge
of the world; and they are a permanent, a settled, a corporate, and not
an occasional and transitory judicature. But it is to be feared that the
authority of the Judges (in the case of juries legal) may, from that
example, weigh with the Lords further than its reason or its
applicability to the judicial capacity of the Peers can support. It is
to be feared, that if the Lords should think themselves bound implicitly
to submit to this authority, that at length they may come to think
themselves to be no better than jurors, and may virtually consent to a
partition of that judicature which the law has left to them whole,
supreme, uncontrolled, and final.
This final and independent judicature, because it is final and
independent, ought to be very cautious with regard to the rejection of
evidence. If incompetent evidence is received by them, there is nothing
to hinder their judging upon it afterwards according to its value: it
may have no weight in their judgment. But if, upon advice of others,
they previously reject information necessary to their proper judgment,
they have no intermediate means of setting themselves right, and they
injure the cause of justice without any remedy. Against errors of juries
there is remedy by a new trial. Against errors of judges there is
remedy, in civil causes, by demurrer and bills of exceptions; against
their final mistake there is remedy by writ of error, in courts of
Common Law. In Chancery there is a remedy by appeal. If they wilfully
err in the rejection of evidence, there was formerly the terror existing
of punishment by impeachment of the Commons. But with regard to the
Lords, there is no remedy for error, no punishment for a wilful wrong.
Your Committee conceives it not improbable that this apparently total
and unreserved submission of the Lords to the dictates of the judges of
the inferior courts (no proper judges, in any light or in any degree, of
the Law of Parliament) may be owing to the very few causes of _original_
jurisdiction, and the great multitude of those of _appellate_
jurisdiction, which come before them. In cases of appeal, or of error,
(which is in the nature of an appeal,) the court of appeal is obliged to
judge, not by _its own_ rules, acting in another capacity, or by those
which it shall choose _pro re nata_ to make, but by the rules of the
inferior court from whence the appeal comes. For the fault or the
mistake of the inferior judge is, that he has not proceeded, as he ought
to do, according to the law which he was to administer; and the
correction, if such shall take place, is to compel the court from
whence the appeal comes to act as originally it ought to have acted,
according to law, as the law ought to have been understood and practised
in that tribunal. The Lords, in such cases of necessity, judge on the
grounds of the law and practice of the courts below; and this they can
very rarely learn with precision, but from the body of the Judges. Of
course much deference is and ought to be had to their opinions. But by
this means a confusion may arise (if not well guarded against) between
what they do in their _appellate_ jurisdiction, which is frequent, and
what they ought to do in their _original_ jurisdiction, which is rare;
and by this the whole original jurisdiction of the Peers, and the whole
law and usage of Parliament, at least in their virtue and spirit, may be
considerably impaired.
* * * * *
After having thus submitted to the House the general tenor of the
proceedings in this trial, your Committee will, with all convenient
speed, lay before the House the proceedings on each head of evidence
separately which has been rejected; and this they hope will put the
House more perfectly in possession of the principal causes of the length
of this trial, as well as of the injury which Parliamentary justice may,
in their opinion, suffer from those proceedings.
FOOTNOTES:
[1] 4 Inst. p. 4.
[2] Rol. Parl. Vol. III. p. 244, § 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. It
does not take in all the extra-judicial opinions.
[31] "_Dissentient._
"1st. Because, by consulting the Judges out of court, in the absence of
the parties, and with shut doors, we have deviated from the most
approved and almost uninterrupted practice of above a century and a
half, and established a precedent not only destructive of the justice
due to the parties at our bar, but materially injurious to the rights of
the community at large, who in cases of impeachments are more peculiarly
interested that all proceedings of this High Court of Parliament should
be open and exposed, like all other courts of justice, to public
observation and comment, in order that no covert and private practices
should defeat the great ends of public justice.
"2dly. Because, from private opinions of the Judges, upon private
statements, which the parties have neither heard nor seen, grounds of a
decision will be obtained which must inevitably affect the cause at
issue at our bar; this mode of proceeding seems to be a violation of the
first principle of justice, inasmuch as we thereby force and confine the
opinions of the Judges to our private statement; and through the medium
of our subsequent decision we transfer the effect of those opinions to
the parties, who have been deprived of the right and advantage of being
heard by such, private, though unintended, transmutation of the point at
issue.
"3dly. Because the prisoners who may hereafter have the misfortune to
stand at our bar will be deprived of that consolation which the Lord
High Steward Nottingham conveyed to the prisoner, Lord Cornwallis, viz.,
'That the Lords have that tender regard of a prisoner at the bar, that
they will not suffer a case to be put in his absence, lest it should
prejudice him by being wrong stated.'
"4thly. Because unusual mystery and secrecy in our judicial proceedings
must tend either to discredit the acquittal of the prisoner, or render
the justice of his condemnation doubtful.
"PORCHESTER. SUFFOLK AND BERKSHIRE. LOUGHBOROUGH."
[32] See the Lord High Steward's speech on that head, 1st James II.
[33] All the resolutions of the Judges, to the time of the reference to
the Committee, are in the Appendix, No. 2.
[34] Atkyns, Vol. I. p. 445.
[35] Blackstone's Commentaries, Book IV. p. 258.
[36] Lords' Journals, Vol. IV. p. 204. An. 1641. Rush. Trial of Lord
Strafford, p. 430.
[37] Lords' Journals, Vol. IV. p. 210.
[38] Id. Vol. XXII. p. 536 to 546. An. 1725.
[39] Lords' Journals, Vol. XXII. p. 541.
[40] Id. Vol. XXVII. p. 63, 65. An. 1746
[41] Gilbert's Law of Evidence, p. 23.
[42] Gravina, 84, 85.
[43] Id. 90 usque ad 100.
[44] Atkyns, Rep. Vol. I p. 37, Omichund _versus_ Barker.
[45] Digest. Lib. XXII. Tit. 5.
[46] Calvinus, voce _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, eaque
Ciceronis ætatem fere attigit, mansitque annos circiter CCCL. Quæ hanc
excepit, viguitque annos fere septuaginta novem, superiori longe
humanior; 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, husband
is admitted to prove an assault upon his wife, for the King, ruled by
Raymond, Chief-Justice, Trin. 11th Geo., King _v._ Azire. And for
various other exceptions see Buller's Nisi Prius, 286, 287.
[54] Cro. Charl. 365.
[55] Omichund _v._ Barker, 1st Atkyns, ut supra.
[56] Rex _v._ Philips, Burrow, Vol. I. p. 301, 302, 304.
[57] Mayor of Hull _v._ Horner, Cowper's Reports, 109.
[58] Abrahams _v._ Bunn, Burrow, Vol. IV. p. 2254. The whole case well
worth reading.
[59] Wyndham _v._ Chetwynd, Burrow, Vol. I. p. 421.
[60] King _v._ Bray.
[61] Wyndham _v._ Chetwynd.
[62] Lowe _v._ Joliffe, 1 Black. J. p. 366.
[63] Burrow, 1147. Zouch, ex dimiss. Woolston, _v._ Woolston.
[64] In this single point Holt did not concur with the rest of the
judges.
[65] 1st Siderfin, p. 431.
[66] Interest 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. Lord
Preston's Case, St. Tr. IV. p. 439. Layer's Case, St. Tr. VI. p. 279.
Foster's Crown Law, p. 198. Canning's Trial, St. Tr. X. p. 263, 270.
Trial of the Duchess of Kingston, St. Tr. XI. p. 244. Trial of Huggins,
St. Tr. IX. p. 119, 120, 135.
[71] Harrison's Practice of Chancery, Vol. II. p. 46. 1 Ch. Ca. 228. 1
Ch. Ca. 25. Oughton, Tit. 81, 82, 83. Do. Tit. 116. Viner, Tit. Evidence
(P. a.).
[72] Carpz. Pract. Saxon. Crimin. Pars III. Quest. CXIV. No. 13.
[73] Ibid. Quest. CVI. No. 89.
[74] 22 Jac. I. 1624.
[75] Morris _v._ Pugh, Burrow, Vol. III. p. 1243. See also Vol. II.
Alder _v._ Chip; Vol. IV. Dickson _v._ Fisher; Grey _v._ Smythyes.--N.B.
All from the same judge, and proceeding on the same principles.
[76] Chesterfield _v._ Janssen, Atkyns's Reports, Vol. II.
[77] State Trials, Vol. III. p. 170.
[78] Bis in originali.
[79] Lords' Journals, 17 Ch. I. Die Sabbati, videlicet, 10º die Aprilis.
[80] Dal. 80. Pl. 18. Anno 14 Eliz. apud Viner, Evid. p. 60.
[81] State Trials, Vol. IV. p. 501.
APPENDIX.
No. 1.
IN THE CASE OF EARL FERRERS.
APRIL 17, 1760.
[Foster's Crown Law, p. 188, fol. edit.]
The House of Peers unanimously found Earl Ferrers guilty of the felony
and murder whereof he stood indicted, and the Earl being brought to the
bar, the High Steward acquainted him therewith; and the House
immediately adjourned to the Chamber of Parliament, and, having put the
following question to the Judges, adjourned to the next day.
"Supposing a peer, so indicted and convicted, ought by law to receive
such judgment as aforesaid, and the day appointed by the judgment for
execution should lapse before such execution done, whether a new time
may be appointed for the execution, and by whom?"
On the 18th, the House then sitting in the Chamber of Parliament, the
Lord Chief Baron, in the absence of the Chief-Justice of the Common
Pleas, delivered in writing the opinion of the Judges, which they had
agreed on and reduced into form that morning. His Lordship added many
weighty reasons in support of the opinion, which he urged with great
strength and propriety, and delivered with a becoming dignity.
_To the Second Question._
"Supposing the day appointed by the judgment for execution should lapse
before such execution done, (which, however, the law will not presume,)
we are all of opinion that a new time may be appointed for the
execution, either by the High Court of Parliament, before which such
peer shall have been attainted, or by the Court of King's Bench, the
Parliament not then sitting: the record of the attainder being properly
removed into that court."
The reasons upon which the Judges founded their answer to the question
relating to the further proceedings of the House after the High
Steward's commission dissolved, which is usually done upon pronouncing
judgment, may possibly require some further discussion. I will,
therefore, before I conclude, mention those which weighed with me, and,
I believe, with many others of the Judges.
_Reasons, &c._
Every proceeding in the House of Peers, acting in its judicial capacity,
whether upon writ of error, impeachment, or indictment, removed thither
by _Certiorari_, is in judgment of law a proceeding before the King in
Parliament; and therefore the House, in all those cases, may not
improperly be styled the Court of our Lord the King in Parliament. This
court is founded upon immemorial usage, upon the law and custom of
Parliament, and is part of the original system of our Constitution. It
is open for all the purposes of judicature, during the continuance of
the Parliament: it openeth at the beginning and shutteth at the end of
every session: just as the Court of King's Bench, which, is likewise in
judgment of law held before the King himself, openeth and shutteth with
the term. The authority of this court, or, if I may use the expression,
its constant activity for the ends of public justice, independent of any
special powers derived from the Crown, is not doubted in the case of
writs of error from those courts of law whence error lieth in
Parliament, and of impeachments for misdemeanors.
It was formerly doubted, whether, in the case of an impeachment for
treason, and in the case of an indictment against a peer for any capital
crime, removed into Parliament by _Certiorari_, whether in these cases
the court can proceed to trial and judgment without an High Steward
appointed by special commission from the Crown. This doubt seemeth to
have arisen from the not distinguishing between a proceeding in the
Court of the High Steward and that before the King in Parliament. The
name, style, and title of office is the same in both cases: but the
office, the powers and preëminences annexed to it, differ very widely;
and so doth the constitution of the courts where the offices are
executed. The identity of the name may have confounded our ideas, as
equivocal words often do, if the nature of things is not attended to;
but the nature of the offices, properly stated, will, I hope, remove
every doubt on these points.
In the Court of the High Steward, he alone is judge in all points of law
and practice; the peers triers are merely judges of fact, and are
summoned by virtue of a precept from the High Steward to appear before
him on the day appointed by him for the trial, _ut rei veritas melius
sciri poterit_. The High Steward's commission, after reciting that an
indictment hath been found against the peer by the grand jury of the
proper county, impowereth him to send for the indictment, to convene the
prisoner before him at such day and place as he shall appoint, then and
there to hear and determine the matter of such indictment; to cause the
peers triers, _tot et tales, per quos rei veritas melius sciri poterit_,
at the same day and place to appear before him; _veritateque inde
compertâ_, to proceed to judgment according to the law and custom of
England, and thereupon to award execution.[82] By this it is plain that
the sole right of judicature is in cases of this kind vested in the High
Steward; that it resideth solely in his person; and consequently,
without this commission, which is but in nature of a commission of Oyer
and Terminer, no one step can be taken in order to a trial; and that
when his commission is dissolved, which he declareth by breaking his
staff, the court no longer existeth.
But in a trial of a peer in full Parliament, or, to speak with legal
precision, before the King in Parliament, for a capital offence, whether
upon impeachment or indictment, the case is quite otherwise. Every peer
present at the trial (and every temporal peer hath a right to be present
in every part of the proceeding) voteth upon every question of law and
fact, and the question is carried by the major vote: the High Steward
himself voting merely as a peer and member of that court, in common with
the rest of the peers, and in no other right.
It hath, indeed, been usual, and very expedient it is, in point of order
and regularity, and for the solemnity of the proceeding, to appoint an
officer for presiding during the time of the trial, and until judgment,
and to give him the style and title of Steward of England: but this
maketh no sort of alteration in the constitution of the court; it is the
same court, founded in immemorial usage, in the law and custom of
Parliament, whether such appointment be made or not. It acteth in its
judicial capacity in every order made touching the time and place of the
trial, the postponing the trial from time to time upon petition,
according to the nature and circumstances of the case, the allowance or
non-allowance of council to the prisoner, and other matters relative to
the trial;[83] and all this before an High Steward hath been appointed.
And so little was it apprehended, in some cases which I shall mention
presently, that the existence of the court depended on the appointment
of an High Steward, that the court itself directed in what manner and by
what form of words he should be appointed. It hath likewise received and
recorded the prisoner's confession, which amounteth to a conviction,
before the appointment of an High Steward; and hath allowed to prisoners
the benefit of acts of general pardon, where they appeared entitled to
it, as well without the appointment of an High Steward as after his
commission dissolved. And when, in the case of impeachments, the Commons
have sometimes, at conferences between the Houses, attempted to
interpose in matters preparatory to the trial, the general answer hath
been, "This is a point of judicature upon which the Lords will not
confer; they impose silence upon themselves,"--or to that effect. I need
not here cite instances; every man who hath consulted the Journals of
either House hath met with many of them.
I will now cite a few cases, applicable, in my opinion, to the present
question. And I shall confine myself to such as have happened since the
Restoration; because, in questions of this kind, modern cases, settled
with deliberation, and upon a view of former precedents, give more light
and satisfaction than the deepest search into antiquity can afford; and
also because the prerogatives of the Crown, the privileges of
Parliament, and the rights of the subject in general appear to me to
have been more studied and better understood at and for some years
before that period than in former ages.
In the case of the Earl of Danby and the Popish lords then under
impeachments, the Lords,[84] on the 6th of May, 1679, appointed time and
place for hearing the Earl of Danby, by his council, upon the validity
of his plea of pardon, and for the trials of the other lords, and voted
an address to his Majesty, praying that he would be pleased to appoint
an High Steward for those purposes. These votes were, on the next day,
communicated to the Commons by message in the usual manner. On the 8th,
at a conference between the Houses upon the subject-matter of that
message, the Commons expressed themselves to the following
effect:--"They cannot apprehend what should induce your Lordships to
address his Majesty for an High Steward, for determining the validity of
the pardon which hath been pleaded by the Earl of Danby, as also for the
trial of the other five lords, because they conceive the constituting
an High Steward is not necessary, but that judgment may be given in
Parliament upon impeachment without an High Steward"; and concluded with
a proposition, that, for avoiding any interruption or delay, a committee
of both Houses might be nominated, to consider of the most proper ways
and methods of proceeding. This proposition the House of Peers, after a
long debate, rejected: _Dissentientibus_, Finch,[85] Chancellor, and
many other lords. However, on the 11th, the Commons' proposition of the
8th was upon a second debate agreed to; and the Lord Chancellor, Lord
President, and ten other lords, were named of the committee, to meet and
confer with a committee of the Commons. The next day the Lord President
reported, that the committees of both Houses met that morning, and made
an entrance into the business referred to them: that the Commons desired
to see the commissions that are prepared for an High Steward at these
trials, and also the commissions in the Lord Pembroke's and the Lord
Morley's cases: that to this the Lords' committees said,--"_The High
Steward is but Speaker pro tempore, and giveth his vote as well as the
other lords; this changeth not the nature of the court_; and the Lords
declared, they have power enough to proceed to trial, though the King
should not name an High Steward:[86] that this seemed to be a
satisfaction to the Commons, provided it was entered in the Lords'
Journals, which are records." Accordingly, on the same day, "_It is
declared and ordered by the Lords Spiritual and Temporal in Parliament
assembled, that the office of an High Steward, upon trials of peers upon
impeachments, is not necessary to the House of Peers; but that the Lords
may proceed in such trials, if an High Steward be not appointed
according to their humble desire._"[87] On the 13th the Lord President
reported, that the committees of both Houses had met that morning, and
discoursed, in the first place, on the matter of a Lord High Steward,
and had perused former commissions for the office of High Steward; and
then, putting the House in mind of the order and resolution of the
preceding day, proposed from the committees that a new commission might
issue, so as the words in the commission may be thus changed: viz.,
Instead of, _Ac pro eo quod officium Seneschalli Angliæ, (cujus
præsentia in hac parte requiritur,) ut accepimus, jam vacat_, may be
inserted, _Ac pro eo quod proceres et magnates in Parliamento nostro
assemblati nobis humiliter supplicaverunt ut Seneschallum Angliæ pro hac
vice constituere dignaremur_: to which the House agreed.[88]
It must be admitted that precedents drawn from times of ferment and
jealousy, as these were, lose much of their weight, since passion and
party prejudice generally mingle in the contest; yet let it be
remembered, that these are resolutions in which both Houses concurred,
and in which the rights of both were thought to be very nearly
concerned,--the Commons' right of impeaching with effect, and the whole
judicature of the Lords in capital cases. For, if the appointment of an
High Steward was admitted to be of absolute necessity, (however
necessary it may be for the regularity and solemnity of the proceeding
during the trial and until judgment, which I do not dispute,) every
impeachment may, for a reason too obvious to be mentioned, be rendered
ineffectual, and the judicature of the Lords in all capital cases
nugatory.
It was from a jealousy of this kind, not at that juncture altogether
groundless, and to guard against everything from whence the necessity of
an High Steward in the case of an impeachment might be inferred, that
the Commons proposed and the Lords readily agreed to the amendment in
the Steward's commission which I have already stated. And it hath, I
confess, great weight with me, that this amendment, which was at the
same time directed in the cases of the five Popish lords, when
commissions should pass for their trials, hath taken place in every
commission upon impeachments for treason since that time.[89] And I
cannot help remarking, that in the case of Lord Lovat, when neither the
heat of the times nor the jealousy of parties had any share in the
proceeding, the House ordered, "That the commission for appointing a
Lord High Steward shall be in the like form as that for the trial of the
Lord Viscount Stafford, as entered in the Journal of this House on the
30th of November, 1680: except that the same shall be in the English
language."[90]
I will make a short observation on this matter. The order, on the 13th
of May, 1679, for varying the form of the commission, was, as appeareth
by the Journal, plainly made in consequence of the resolution of the
12th, and was founded on it; and consequently the constant, unvarying
practice with regard to the new form goeth, in my opinion, a great way
towards showing, that, in the sense of all succeeding times, that
resolution was not the result of faction or a blamable jealousy, but was
founded in sound reason and true policy. It may be objected, that the
resolution of the 12th of May, 1679, goeth no further than to a
proceeding upon impeachment. The letter of the resolution, it is
admitted, goeth no further. But this is easily accounted for: a
proceeding by impeachment was the subject-matter of the conference, and
the Commons had no pretence to interpose in any other. But what say the
Lords? _The High Steward is but as a Speaker or Chairman pro tempore,
for the more orderly proceeding at the trials; the appointment of him
doth not alter the nature of the court, which still remaineth the Court
of the Peers in Parliament._ From these premises they draw the
conclusion I have mentioned. Are not these premises equally true in the
case of a proceeding upon indictment? They undoubtedly are.
It must likewise be admitted, that in the proceeding upon indictment the
High Steward's commission hath never varied from the ancient form in
such cases. The words objected to by the Commons, _Ac pro eo quod
officium Seneschalli Angliæ, (cujus præsentia in hac parte requiritur,)
ut accepimus, jam vacat_, are still retained; but this proveth no more
than that the Great Seal, having no authority to vary in point of form,
hath from time to time very prudently followed ancient precedents.
I have already stated the substance of the commission in a proceeding in
the Court of the High Steward. I will now state the substance of that in
a proceeding in the Court of the Peers in Parliament; and shall make use
of that in the case of the Earl of Kilmarnock and others, as being the
latest, and in point of form agreeing with the former precedents. The
commission, after reciting that William, Earl of Kilmarnock, &c., stand
indicted before commissioners of gaol-delivery in the County of Surrey,
for high treason, in levying war against the King, and that the King
intendeth that the said William, Earl of Kilmarnock, &c., shall be
heard, examined, sentenced, and adjudged before himself, in this present
Parliament, touching the said treason, and for that the office of
Steward of Great Britain (whose presence is required upon this
occasion) is now vacant, as we are informed, appointeth the then Lord
Chancellor Steward of Great Britain, to bear, execute, and exercise (for
this time) the said office, with all things due and belonging to the
same office, in that behalf.
What, therefore, are the things due and belonging to the office in a
case of this kind? Not, as in the Court of the High Steward, a right of
judicature; for the commission itself supposeth that right to reside in
a court then subsisting before the King in Parliament. The parties are
to be there heard, sentenced, and adjudged. What share in the proceeding
doth the High Steward, then, take? By the practice and usage of the
Court of the Peers in Parliament, he giveth his vote as a member
thereof, with the rest of the peers; but, for the sake of regularity and
order, he presideth during the trial and until judgment, as Chairman or
Speaker _pro tempore_. In that respect, therefore, it may be properly
enough said, that his presence is required during the trial and until
judgment, and in no other. Herein I see no difference between the case
of an impeachment and of an indictment. I say, during the time of the
trial and until judgment; because the court hath, as I observed before,
from time to time done various acts, plainly judicial, before the
appointment of an High Steward, and where no High Steward hath ever been
appointed, and even after the commission dissolved. I will to this
purpose cite a few cases.
I begin with the latest, because they are the latest, and were ruled
with great deliberation, and for the most part upon a view of former
precedents. In the case of the Earl of Kilmarnock and others, the Lords,
on the 24th of June, 1746, ordered that a writ or writs of _Certiorari_
be issued for removing the indictments before the House; and on the
26th, the writ, which is made returnable before the King in Parliament,
with the return and indictments, was received and read. On the next day,
upon the report of the Lords' committees, that they had been attended
by the two Chief-Justices and Chief-Baron, and had heard them touching
the construction of the act of the 7th and 8th of King William, "for
regulating trials in cases of high treason and misprision of treason,"
the House, upon reading the report, came to several resolutions, founded
for the most part on the construction of that act. What that
construction was appeareth from the Lord High Steward's address to the
prisoners just before their arraignment. Having mentioned that act as
one happy consequence of the Revolution, he addeth,--"However
injuriously that revolution hath been traduced, whatever attempts have
been made to subvert this happy establishment founded on it, your
Lordships will now have the benefit of that law in its full extent."
I need not, after this, mention any other judicial acts done by the
House in this case, before the appointment of the High Steward: many
there are. For the putting a construction upon an act relative to the
conduct of the court and the right of the subject at the trial, and in
the proceedings preparatory to it, and this in a case entirely new, and
upon a point, to say no more in this place, not extremely clear, was
undoubtedly an exercise of authority proper only for a court having full
cognizance of the cause.
I will not minutely enumerate the several orders made preparatory to the
trial of Lord Lovat, and in the several cases I shall have occasion to
mention, touching the time and place of the trial, the allowance or
non-allowance of council, and other matters of the like kind, all
plainly judicial; because the like orders occur in all the cases where a
journal of the preparatory steps hath been published by order of the
Peers. With regard to Lord Lovat's case, I think the order directing the
form of the High Steward's commission, which I have already taken notice
of, is not very consistent with the idea of a court whose powers can be
supposed to depend, at any point of time, upon the existence or
dissolution of that commission.
In the case of the Earl of Derwentwater and the other lords impeached at
the same time, the House received and recorded the confessions of those
of them who pleaded guilty, long before the _teste_ of the High
Steward's commission, which issued merely for the solemnity of giving
judgment against them upon their conviction. This appeareth by the
commission itself. It reciteth, that the Earl of Derwentwater and
others, _coram nobis in præsenti Parliamento_, had been impeached by the
Commons for high treason, and had, _coram nobis in præsenti
Parliamento_, pleaded guilty to that impeachment; and that the King,
intending that the said Earl of Derwentwater and others, _de et pro
proditione unde ipsi ut præfertur impetit', accusat', et convict'
existunt coram nobis in præsenti Parliamento, secundum legem et
consuetudinem hujus regni nostri Magnæ Britanniæ, audientur,
sententientur, et adjudicentur_, constituteth the then Lord Chancellor
High Steward (_hac vice_) to do and execute all things which to the
office of High Steward in that behalf do belong. The receiving and
recording the confession of the prisoners, which amounted to a
conviction, so that nothing remained but proceeding to judgment, was
certainly an exercise of judicial authority, which no assembly, how
great soever, not having full cognizance of the cause, could exercise.
In the case of Lord Salisbury, who had been impeached by the Commons for
high treason, the Lords, upon his petition, allowed him the benefit of
the act of general pardon passed in the second year of William and Mary,
so far as to discharge him from his imprisonment, upon a construction
they put upon that act, no High Steward ever having been appointed in
that case. On the 2d of October, 1690, upon reading the Earl's petition,
setting forth that he had been a prisoner for a year and nine months in
the Tower, notwithstanding the late act of free and general pardon, and
praying to be discharged, the Lords ordered the Judges to attend on the
Monday following, to give their opinions whether the said Earl be
pardoned by the act. On the 6th the Judges delivered their opinions,
that, if his offence was committed before the 13th of February, 1688,
and not in Ireland or beyond the seas, he is pardoned. Whereupon it was
ordered that he be admitted to bail, and the next day he and his
sureties entered into a recognizance of bail, himself in ten thousand
pounds, and two sureties in five thousand pounds each; and on the 30th
he and his sureties were, after a long debate, discharged from their
recognizance.[91] It will not be material to inquire whether the House
did right in discharging the Earl without giving the Commons an
opportunity of being heard; since, in fact, they claimed and exercised a
right of judicature without an High Steward,--which is the only use I
make of this case.
They did the same in the case of the Earl of Carnwarth, the Lords
Widdrington and Nairn, long after the High Steward's commission
dissolved. These lords had judgment passed on them at the same time
that judgment was given against the Lords Derwentwater, Nithsdale, and
Kenmure; and judgment being given, the High Steward immediately broke
his staff, and declared the commission dissolved. They continued
prisoners in the Tower under reprieves, till the passing the act of
general pardon, in the 3d of King George I. On the 21st of November,
1717, the House being informed that these lords had severally entered
into recognizances before one of the judges of the Court of King's Bench
for their appearance in the House in this session of Parliament, and
that the Lords Carnwarth and Widdrington were attending accordingly, and
that the Lord Nairn was ill at Bath and could not then attend, the Lords
Carnwarth and Widdrington were called in, and severally at the bar
prayed that their appearance might be recorded; and likewise prayed the
benefit of the act[92] for his Majesty's general and free pardon.
Whereupon the House ordered that their appearance be recorded, and that
they attend again to-morrow, in order to plead the pardon; and the
recognizance of the Lord Nairn was respited till that day fortnight. On
the morrow the Lords Carnwarth and Widdrington, then attending, were
called in; and the Lord Chancellor acquainted them severally, that it
appeared by the records of the House that they severally stood attainted
of high treason, and asked them severally what they had to say why they
should not be remanded to the Tower of London. Thereupon they severally,
upon their knees, prayed the benefit of the act, and that they might
have their lives and liberty pursuant thereunto. And the
Attorney-General, who then attended for that purpose, declaring that he
had no objection on his Majesty's behalf to what was prayed, conceiving
that those lords, not having made any escape since their conviction,
were entitled to the benefit of the act, the House, after reading the
clause in the act relating to that matter,[93] agreed that they should
be allowed the benefit of the pardon, as to their lives and liberties,
and discharged their recognizances, and gave them leave to depart
without further day given for their appearance. On the 6th of December
following, the like proceedings were had, and the like orders made, in
the case of Lord Nairn.[94]
I observe that the Lord Chancellor did not ask these lords what they had
to say why execution should not be awarded. There was, it is probable,
some little delicacy as to that point. But since the allowance of the
benefit of the act, as to life and liberty, which was all that was
prayed, was an effectual bar to any future imprisonment on that account,
and also to execution, and might have been pleaded as such in any court
whatsoever, the whole proceeding must be admitted to have been in a
court having complete jurisdiction in the case, notwithstanding the High
Steward's commission had been long dissolved,--which is all the use I
intended to make of this case.
I will not recapitulate: the cases I have cited, and the conclusions
drawn from them, are brought into a very narrow compass. I will only
add, that it would sound extremely harsh to say, that a court of
criminal jurisdiction, founded in immemorial usage, and held in judgment
of law before the King himself, can in any event whatever be under an
utter incapacity of proceeding to trial and judgment, either of
condemnation or acquittal, the ultimate objects of every criminal
proceeding, without certain supplemental powers derived from the Crown.
These cases, with the observations I have made on them, I hope
sufficiently warrant the opinion of the Judges upon that part of the
second question, in the case of the late Earl Ferrers, which I have
already mentioned,--and also what was advanced by the Lord Chief-Baron
in his argument on that question,--"That, though the office of High
Steward should happen to determine before execution done according to
the judgment, yet the Court of the Peers in Parliament, where that
judgment was given, would subsist for all the purposes of justice during
the sitting of the Parliament," and consequently, that, in the case
supposed by the question, that court might appoint a new day for the
execution.
No. II.
Questions referred by the Lords to the Judges, in the Impeachment
of Warren Hastings, Esquire, and the Answers of the
Judges.--Extracted from the Lords' Journals and Minutes.
_First._
_Question._--Whether, when a witness produced and examined in a criminal
proceeding by a prosecutor disclaims all knowledge of any matter so
interrogated, it be competent for such prosecutor to pursue such
examination, by proposing a question containing the particulars of an
answer supposed to have been made by such witness before a committee of
the House of Commons, or in any other place, and by demanding of him
whether the particulars so suggested were not the answer he had so made?
1788, February 29.--Pa. 418.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the question of law put to them on
Friday, the 29th of February last, as follows:--"That, when a witness
produced and examined in a criminal proceeding by a prosecutor disclaims
all knowledge of any matter so interrogated, it is not competent for
such prosecutor to pursue such examination, by proposing a question
containing the particulars of an answer supposed to have been made by
such witness before a committee of the House of Commons, or in any other
place, and by demanding of him whether the particulars so suggested were
not the answer he had so made."
1788, April 10.--Pa. 592.
_Second._
_Question._--Whether it be competent for the Managers to produce an
examination taken without oath by the rest of the Council in the absence
of Mr. Hastings, the Governor-General, charging Mr. Hastings with
corruptly receiving 3,54,105 rupees, which examination came to his
knowledge, and was by him transmitted to the Court of Directors as a
proceeding of the said Councillors, in order to introduce the proof of
his demeanor thereupon,--it being alleged by the Managers for the
Commons, that he took no steps to clear himself, in the opinion of the
said Directors, of the guilt thereby imputed, but that he took active
means to prevent the examination by the said Councillors of his servant
Cantoo Baboo?
1789, May 14--Pa. 677.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question, in the
negative,--and gave his reasons.
1789, May 20.--Pa. 718.
_Third._
_Question._--Whether the instructions from the Court of Directors of the
United Company of Merchants of England trading to the East Indies, to
Warren Hastings, Esquire, Governor-General, Lieutenant-General John
Clavering, the Honorable George Monson, Richard Barwell, Esquire, and
Philip Francis, Esquire, Councillors, (constituted and appointed the
Governor-General and Council of the said United Company's Presidency of
Fort William in Bengal, by an act of Parliament passed in the last
session, intituled, "An act for establishing certain regulations for the
better management of the affairs of the East India Company, as well in
India as in Europe,") of the 29th of March, 1774, Par. 31, 32, and 35,
the Consultation of the 11th March, 1775, the Consultation of the 13th
of March, 1775, up to the time that Mr. Hastings left the Council, the
Consultation of the 20th of March, 1775, the letter written by Mr.
Hastings to the Court of Directors on the 25th of March, 1775, (it being
alleged that Mr. Hastings took no steps to explain or defend his
conduct,) are sufficient to introduce the examination of Nundcomar, or
the proceedings of the rest of the Councillors, on said 13th of March,
after Mr. Hastings left the Council,--such examination and proceedings
charging Mr. Hastings with, corruptly receiving 3,54,105 rupees?
1789, May 21.--Pa. 730.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question, in the
negative,--and gave his reasons.
1789, May 27.--Pa. 771.
_Fourth._
_Question._--Whether the public accounts of the Nizamut and Bhela, under
the seal of the Begum, attested also by the Nabob, and transmitted by
Mr. Goring to the Board of Council at Calcutta, in a letter bearing date
the 29th June, 1775, received by them, recorded without objection on the
part of Mr. Hastings, and transmitted by him likewise without objection
to the Court of Directors, and alleged to contain accounts of money
received by Mr. Hastings,--and it being in proof, that Mr. Hastings, on
the 11th of May, 1778, moved the Board to comply with the requisitions
of the Nabob Mobarek ul Dowlah to reappoint the Munny Begum and Rajah
Gourdas (who made up those accounts) to the respective offices they
before filled, and which was accordingly resolved by the Board,--ought
to be read?
1789, June 17.--Pa. 855.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question, in the
negative,--and gave his reasons.
1789, June 24.--Pa. 922.
_Fifth._
_Question._--Whether the paper delivered by Sir Elijah Impey, on the 7th
of July, 1775, in the Supreme Court, to the Secretary of the Supreme
Council, in order to be transmitted to the Council as the resolution of
the Court in respect to the claim made for Roy Rada Churn, on account of
his being vakeel of the Nabob Mobarek ul Dowlah,--and which paper was
the subject of the deliberation of the Council on the 31st July, 1775,
Mr. Hastings being then present, and was by them transmitted to the
Court of Directors, as a ground for such instructions from the Court of
Directors as the occasion might seem to require,--may be admitted as
evidence of the actual state and situation of the Nabob with reference
to the English government?
1789, July 2.--Pa. 1001.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question, in the
affirmative,--and gave his reasons.
1789, July 7.--Pa. 1030.
_Sixth._
_Question._--Whether it be or be not competent to the Managers for the
Commons to give evidence upon the charge in the sixth article, to prove
that the rent, at which the defendant, Warren Hastings, let the lands
mentioned in the said sixth article of charge to Kelleram, fell into
arrear and was deficient,--and whether, if proof were offered, that the
rent fell in arrear immediately after the letting, the evidence would in
that case be competent?
1790, April 22.--Pa. 364.
* * * * *
_Answer._--The lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question,--"That it is not
competent to the Managers for the Commons to give evidence upon the
charge in the sixth article, to prove that the rent, at which the
defendant, Warren Hastings, let the lands mentioned in the said sixth
article of charge to Kelleram, fell into arrear and was deficient,"--and
gave his reasons.
1790, April 27.--Pa. 388.
_Seventh._
_Question._--Whether it be competent for the Managers for the Commons to
put the following question to the witness, upon the sixth article of
charge, viz.: "What impression the letting of the lands to Kelleram and
Cullian Sing made on the minds of the inhabitants of that country"?
1790, April 27.--Pa. 391.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question,--"That it is not
competent to the Managers for the Commons to put the following question
to the witness, upon the sixth article of charge, viz.: What impression,
the letting of the lands to Kelleram and Cullian Sing made on the minds
of the inhabitants of that country,"--and gave his reasons.
1790, April 29.--Pa. 413.
_Eighth._
_Question._--Whether it be competent to the Managers for the Commons to
put the following question to the witness, upon the seventh article of
charge, viz.: "Whether more oppressions did actually exist under the new
institution than under the old"?
1790, April 29.--Pa. 415.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question,--"That it is not
competent to the Managers for the Commons to put the following question
to the witness, upon the seventh article of charge, viz.: Whether more
oppressions did actually exist under the new institution than under the
old,"--and gave his reasons.
1790, May 4.--Pa. 428.
_Ninth._
_Question._--Whether the letter of the 13th April, 1781, can be given in
evidence by the Managers for the Commons, to prove that the letter of
the 5th of May, 1781, already given in evidence, relative to the
abolition of the Provincial Council and the subsequent appointment of
the Committee of Revenue, was false in any other particular than that
which is charged in the seventh article of charge?
1790, May 20.--Pa. 557.
* * * * *
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the
unanimous opinion of the Judges upon the said question,--"That it is not
competent for the Managers on the part of the Commons to give any
evidence on the seventh article of impeachment, to prove that the
letter of the 5th of May, 1781, is false in any other particular than
that wherein it is expressly charged to be false,"--and gave his
reasons.
1790, June 2.--Pa. 634.
_Tenth._
_Question._--Whether it be competent to the Managers for the Commons to
examine the witness to any account of the debate which was had on the
9th day of July, 1778, previous to the written minutes that appear upon
the Consultation of that date?
1794, February 25.--Lords' Minutes.
* * * * *
_Answer._--The Lord Chief-Justice of the Court of Common Pleas delivered
the unanimous opinion of the Judges upon the said question,--"That it is
not competent to the Managers for the Commons to examine the witness,
Philip Francis, Esquire, to any account of the debate which was had on
the 9th day of July, 1778, previous to the written minutes that appear
upon the Consultation of that date,"--and gave his reasons.
1794, February 27.--Lords' Minutes.
_Eleventh._
_Question._--Whether it is competent for the Managers for the Commons,
in reply, to ask the witness, whether, between the time of the original
demand being made upon Cheyt Sing and the period of the witness's
leaving Bengal, it was at any time in his power to have reversed or put
a stop to the demand upon Cheyt Sing,--the same not being relative to
any matter originally given in evidence by the defendant?
1794, February 27.--Lords' Minutes.
* * * * *
_Answer._--The Lord Chief-Justice of the Court of Common Pleas delivered
the unanimous opinion of the Judges upon the said question,--"That it is
not competent for the Managers for the Commons to ask the witness,
whether, between the time of the original demand being made upon Cheyt
Sing and the period of his leaving Bengal, it was at any time in his
power to have reversed or put a stop to the demand upon Cheyt Sing,--the
same not being relative to any matter originally given in evidence by
the defendant,"--and gave his reasons.
1794, March 1.--Lords' Minutes.
_Twelfth._
_Question._--Whether a paper, read in the Court of Directors on the 4th
of November, 1783, and then referred by them to the consideration of the
Committee of the whole Court, and again read in the Court of Directors
on the 19th of November, 1783, and amended and ordered by them to be
published for the information of the Proprietors, can be received in
evidence, in reply, to rebut the evidence, given by the defendant, of
the thanks of the Court of Directors, signified to him on the 28th of
June, 1785?
1794, March 1.--Lords' Minutes.
_Answer._--Whereupon the Lord Chief-Justice of the Court of Common
Pleas, having conferred with the rest of the Judges present, delivered
their unanimous opinion upon the said question, in the negative,--and
gave his reasons.
1794, March 1.--Lords' Minutes.
FOOTNOTES:
[82] See Lord Clarendon's commission as High Steward, and the writs and
precepts preparatory to the trial, in Lord Morley's case. VII. St. Tr.
[83] See the orders previous to the trial, in the cases of the Lords
Kilmarnock, &c., and Lord Lovat, and many other modern cases.
[84] Lords' Journals.
[85] Afterwards Earl of Nottingham.
[86] In the Commons' Journal of the 15th of May it standeth
thus:--"Their Lordships further declared to the committee, that a Lord
High Steward, was made _hac vice_ only; that, notwithstanding the making
of a Lord High Steward, the court remained the same, and was not thereby
altered, but still remained the Court of Peers in Parliament; that the
Lord High Steward was but as a Speaker or Chairman, for the more orderly
proceeding at the trials."
[87] This resolution my Lord Chief-Baron referred to and cited in his
argument upon the second question proposed to the Judges, which is
before stated.
[88] This amendment arose from an exception taken to the commission by
the committee for the Commons, which, as it then stood, did in their
opinion imply that the constituting a Lord High Steward was necessary.
Whereupon it was agreed by the whole committee of Lords and Commons,
that the commission should be recalled, and a new commission, according
to the said amendment, issue, to bear date after the order and
resolution of the 12th.--_Commons' Journal_ of the 15th of May.
[89] See, in the State Trials, the commissions in the cases of the Earl
of Oxford, Earl of Derwentwater, and others,--Lord Wintoun and Lord
Lovat.
[90] See the proceedings printed by order of the House of Lords, 4th
February, 1746.
[91] See the Journals of the Lords.
[92] 3 Geo. I. c. 19.
[93] See sect. 45 of the 3d Geo. I
[94] Lords' Journals.
REMARKS
IN
VINDICATION OF THE PRECEDING REPORT.
The preceding Report was ordered to be printed for the use of the
members of the House of Commons, and was soon afterwards reprinted
and published, in the shape of a pamphlet, by a London bookseller.
In the course of a debate which took place in the House of Lords, on
Thursday, the 22d of May, 1794, on the Treason and Sedition Bills,
Lord Thurlow took occasion to mention "a pamphlet which his Lordship
said was published by one Debrett, of Piccadilly, and which had that
day been put into his hands, reflecting highly upon the Judges and
many members of that House. This pamphlet was, he said, scandalous
and indecent, and such as he thought ought not to pass unnoticed. He
considered the vilifying and misrepresenting the conduct of judges
and magistrates, intrusted with the administration of justice and
the laws of the country, to be a crime of a very heinous nature, and
most destructive in its consequences, because it tended to lower
them in the opinion of those who ought to feel a proper reverence
and respect for their high and important stations; and that, when it
was stated to the ignorant or the wicked that their judges and
magistrates were ignorant and corrupt, it tended to lessen their
respect for and obedience to the laws themselves, by teaching them
to think ill of those who administered them." On the next day Mr.
Burke called the attention of the House of Commons to this matter,
in a speech to the following effect.
Mr. Speaker,--The license of the present times makes it very difficult
for us to talk upon certain subjects in which Parliamentary order is
involved. It is difficult to speak of them with regularity, or to be
silent with dignity and wisdom. All our proceedings have been constantly
published, according to the discretion and ability of individuals out of
doors, with impunity, almost ever since I came into Parliament. By
usage, the people have obtained something like a prescriptive right to
this abuse. I do not justify it; but the abuse is now grown so
inveterate that to punish it without previous notice would have an
appearance of hardship, if not injustice. The publications I allude to
are frequently erroneous as well as irregular, but they are not always
so; what they give as the reports and resolutions of this House have
sometimes been given correctly. And it has not been uncommon to attack
the proceedings of the House itself under color of attacking these
irregular publications. Notwithstanding, however, this colorable plea,
this House has in some instances proceeded to punish the persons who
have thus insulted it. You will here, too, remark, Sir, that, when a
complaint is made of a piratical edition of a work, the authenticity of
the original work is admitted, and whoever attacks the matter of the
work itself in these unauthorized publications does not attack it less
than if he had attacked it in an edition authorized by the writer.
I understand, Sir, that in a place which I greatly respect, and by a
person for whom I have likewise a great veneration, a pamphlet published
by a Mr. Debrett has been very heavily censured. That pamphlet, I hear,
(for I have not read it,) purports to be a Report made by one of your
Committees to this House. It has been censured, as I am told, by the
person and in the place I have mentioned, in very harsh and very
unqualified terms. It has been there said, (and so far very truly,) that
at all times, and particularly at this time, it is necessary, for the
preservation of order and the execution of the law, that the characters
and reputation of the Judges of the Courts in Westminster Hall should be
kept in the highest degree of respect and reverence; and that in this
pamphlet, described by the name of a libel, the characters and conduct
of those Judges upon a late occasion have been aspersed, as arising from
ignorance or corruption.
Sir, combining all the circumstances, I think it impossible not to
suppose that this speech does reflect upon a Report which, by an order
of the Committee on which I served, I had the honor of presenting to
this House. For anything improper in that Report I am responsible, as
well as the members of the Committee, to this House, and to this House
only. The matters contained in it, and the observations upon them, are
submitted to the wisdom of the House, that you may act upon both in the
time and manner that to your judgment may seem most expedient,--or that
you may not act upon them at all, if you should think that most
expedient for the public good. Your Committee has obeyed your orders; it
has done its duty in making that Report.
I am of opinion, with the eminent person by whom that Report is
censured, that it is necessary at this time very particularly that the
authority of Judges should be preserved and supported. This, however,
does not depend so much upon us as upon themselves. It is necessary to
preserve the dignity and respect of all the constitutional authorities.
This, too, depends in part upon ourselves. It is necessary to preserve
the respect due to the House of Lords: it is full as necessary to
preserve the respect due to the House of Commons, upon which (whatever
may be thought of us by some persons) the weight and force of all other
authorities within this kingdom essentially depend. If the power of the
House of Commons be degraded or enervated, no other can stand. We must
be true to ourselves. We ought to animadvert upon any of our members who
abuse the trust we place in them; we must support those who, without
regard to consequences, perform their duty.
With regard to the matter which I am now submitting to your
consideration, I must say for your Committee of Managers and for myself,
that the Report was deliberately made, and does not, as I conceive,
contain any very material error, nor any undue or indecent reflection
upon any person or persons whatever. It does not accuse the Judges of
ignorance or corruption. Whatever it says it does not say calumniously.
That kind of language belongs to persons whose eloquence entitles them
to a free use of epithets. The Report states that the Judges had given
their opinions secretly, contrary to the almost uninterrupted tenor of
Parliamentary usage on such occasions. It states that the mode of giving
the opinions was unprecedented, and contrary to the privileges of the
House of Commons. It states that the Committee did not know upon what
rules and principles the Judges had decided upon those cases, as they
neither heard their opinions delivered, nor have found them entered upon
the Journals of the House of Lords. It is very true that we were and are
extremely dissatisfied with those opinions, and the consequent
determinations of the Lords; and we do not think such a mode of
proceeding at all justified by the most numerous and the best
precedents. None of these sentiments is the Committee, as I conceive,
(and I feel as little as any of them,) disposed to retract, or to soften
in the smallest degree.
The Report speaks for itself. Whenever an occasion shall be regularly
given to maintain everything of substance in that paper, I shall be
ready to meet the proudest name for ability, learning, or rank that this
kingdom contains, upon that subject. Do I say this from any confidence
in myself? Far from it. It is from my confidence in our cause, and in
the ability, the learning, and the constitutional principles which this
House contains within itself, and which I hope it will ever
contain,--and in the assistance which it will not fail to afford to
those who with good intention do their best to maintain the essential
privileges of the House, the ancient law of Parliament, and the public
justice of this kingdom.
* * * * *
No reply or observation was made on the subject by any other member, nor
was any farther notice taken of it in the House of Lords.
SPEECHES
IN
THE IMPEACHMENT
OF
WARREN HASTINGS, ESQUIRE,
LATE GOVERNOR-GENERAL OF BENGAL.
SPEECH IN GENERAL REPLY.
MAY AND JUNE, 1794.
SPEECH
IN
GENERAL REPLY.
FIRST DAY: WEDNESDAY, MAY 28, 1794
My Lords,--This business, which has so long employed the public councils
of this kingdom, so long employed the greatest and most august of its
tribunals, now approaches to a close. The wreck and fragments of our
cause (which has been dashed to pieces upon rules by which your
Lordships have thought fit to regulate its progress) await your final
determination. Enough, however, of the matter is left to call for the
most exemplary punishment that any tribunal ever inflicted upon any
criminal. And yet, my Lords, the prisoner, by the plan of his defence,
demands not only an escape, but a triumph. It is not enough for him to
be acquitted: the Commons of Great Britain must be condemned; and your
Lordships must be the instruments of his glory and of our disgrace. This
is the issue upon which he has put this cause, and the issue upon which
we are obliged to take it now, and to provide for it hereafter.
My Lords, I confess that at this critical moment I feel myself oppressed
with an anxiety that no words can adequately express. The effect of all
our labors, the result of all our inquiries, is now to be ascertained.
You, my Lords, are now to determine, not only whether all these labors
have been vain and fruitless, but whether we have abused so long the
public patience of our country, and so long oppressed merit, instead of
avenging crime. I confess I tremble, when I consider that your judgment
is now going to be passed, not on the culprit at your bar, but upon the
House of Commons itself, and upon the public justice of this kingdom, as
represented in this great tribunal. It is not that culprit who is upon
trial; it is the House of Commons that is upon its trial, it is the
House of Lords that is upon its trial, it is the British nation that is
upon its trial before all other nations, before the present generation,
and before a long, long posterity.
My Lords, I should be ashamed, if at this moment I attempted to use any
sort of rhetorical blandishments whatever. Such artifices would neither
be suitable to the body that I represent, to the cause which I sustain,
or to my own individual disposition, upon such an occasion. My Lords, we
know very well what these fallacious blandishments too frequently are.
We know that they are used to captivate the benevolence of the court,
and to conciliate the affections of the tribunal rather to the person
than to the cause. We know that they are used to stifle the
remonstrances of conscience in the judge, and to reconcile it to the
violation of his duty. We likewise know that they are too often used in
great and important causes (and more particularly in causes like this)
to reconcile the prosecutor to the powerful factions of a protected
criminal, and to the injury of those who have suffered by his
crimes,--thus inducing all parties to separate in a kind of good humor,
as if they had nothing more than a verbal dispute to settle, or a slight
quarrel over a table to compromise. All this may now be done at the
expense of the persons whose cause we pretend to espouse. We may all
part, my Lords, with the most perfect complacency and entire good humor
towards one another, while nations, whole suffering nations, are left to
beat the empty air with cries of misery and anguish, and to cast forth
to an offended heaven the imprecations of disappointment and despair.
One of the counsel for the prisoner (I think it was one who has
comported himself in this cause with decency) has told your Lordships
that we have come here on account of _some doubts_ entertained in the
House of Commons concerning the conduct of the prisoner at your
bar,--that we shall be extremely delighted, when his defence and your
Lordships' judgment shall have set him free, and shall have discovered
to us our error,--that we shall then mutually congratulate one
another,--and that the Commons, and the Managers who represent them
here, will be the first to rejoice in so happy an event and so fortunate
a discovery.
Far, far from the Commons of Great Britain be all manner of real vice;
but ten thousand times further from them, as far as from pole to pole,
be the whole tribe of false, spurious, affected, counterfeit,
hypocritical virtues! These are the things which are ten times more at
war with real virtue, these are the things which are ten times more at
war with real duty, than any vice known by its name and distinguished by
its proper character. My Lords, far from us, I will add, be that false
and affected candor that is eternally in treaty with crime,--that half
virtue, which, like the ambiguous animal that flies about in the
twilight of a compromise between day and night, is to a just man's eye
an odious and disgusting thing! There is no middle point in which the
Commons of Great Britain can meet tyranny and oppression. No, we never
shall (nor can we conceive that we ever should) pass from this bar,
without indignation, without rage and despair, if the House of Commons
should, upon such a defence as has here been made against such a charge
as they have produced, be foiled, baffled, and defeated. No, my Lords,
we never could forget it; a long, lasting, deep, bitter memory of it
would sink into our minds.
My Lords, the Commons of Great Britain have no doubt upon this subject.
We came hither to call for justice, not to solve a problem; and if
justice be denied us, the accused is not acquitted, but the tribunal is
condemned. We know that this man is guilty of all the crimes which he
stands accused of by us. We have not come here to you, in the rash heat
of a day, with that fervor which sometimes prevails in popular
assemblies, and frequently misleads them. No: if we have been guilty of
error in this cause, it is a deliberate error, the fruit of long,
laborious inquiry,--an error founded on a procedure in Parliament before
we came here, the most minute, the most circumstantial, and the most
cautious that ever was instituted. Instead of coming, as we did in Lord
Strafford's case, and in some others, voting the impeachment and
bringing it up on the same day, this impeachment was voted from a
general sense prevailing in the House of Mr. Hastings's criminality
after an investigation begun in the year 1780, and which produced in
1782 a body of resolutions condemnatory of almost the whole of his
conduct. Those resolutions were formed by the Lord Advocate of
Scotland, and carried in our House by the unanimous consent of all
parties: I mean the then Lord Advocate of Scotland,--now one of his
Majesty's principal Secretaries of State, and at the head of this very
Indian department. Afterwards, when this defendant came home, in the
year 1785, we 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.
My Lords, great and powerful as the House of Commons is, (and great and
powerful I hope it always will remain,) yet we cannot be insensible to
the effects produced by the introduction of forty millions of money into
this country from India. We know that the private fortunes which have
been made there pervade this kingdom so universally that there is not a
single parish in it unoccupied by the partisans of the defendant. We
should fear that the faction which he has thus formed by the oppression
of the people of India would be too strong for the House of Commons
itself, with all its power and reputation, did we not know that we have
brought before you a cause which nothing can resist.
* * * * *
I shall now, my Lords, proceed to state what has been already done in
this cause, and in what condition it now stands for your judgment.
An immense mass of criminality was digested by a committee of the House
of Commons; but although this mass had been taken from another mass
still greater, the House found it expedient to select twenty specific
charges, which they afterwards directed us, their Managers, to bring to
your Lordships' bar. Whether that which has been brought forward on
these occasions or that which was left behind be more highly criminal, I
for one, as a person most concerned in this inquiry, do assure, your
Lordships that it is impossible for me to determine.
After we had brought forward this cause, (the greatest in extent that
ever was tried before any human tribunal, to say nothing of the
magnitude of its consequences,) we soon found, whatever the reasons
might be, without at present blaming the prisoner, without blaming your
Lordships, and far are we from imputing blame to ourselves, we soon
found that this trial was likely to be protracted to an unusual length.
The Managers of the Commons, feeling this, went up to their constituents
to procure from them the means of reducing it within a compass fitter
for their management and for your Lordships' judgment. Being furnished
with this power, a second selection was made upon the principles of the
first: not upon the idea that what we left could be less clearly
sustained, but because we thought a selection should be made upon some
juridical principle. With this impression on our minds, we reduced the
whole cause to four great heads of guilt and criminality. Two of them,
namely, Benares and the Begums, show the effects of his open violence
and injustice; the other two expose the principles of pecuniary
corruption upon which the prisoner proceeded: one of these displays his
passive corruption in receiving bribes, and the other his active
corruption, in which he has endeavored to defend his passive corruption
by forming a most formidable faction both abroad and at home. There is
hardly any one act of the prisoner's corruption in which there is not
presumptive violence, nor any acts of his violence in which there are
not presumptive proofs of corruption. These practices are so intimately
blended with each other, that we thought the distribution which we have
adopted would best bring before you the spirit and genius of his
government; and we were convinced, that, if upon these four great heads
of charge your Lordships should not find him guilty, nothing could be
added to them which would persuade you so to do.
In this way and in this state the matter now comes before your
Lordships. I need not tread over the ground which has been trod with
such extraordinary abilities by my brother Managers, of whom I shall say
nothing more than that the cause has been supported by abilities equal
to it; and, my Lords, no abilities are beyond it. As to the part which I
have sustained in this procedure, a sense of my own abilities, weighed
with the importance of the cause, would have made me desirous of being
left out of it; but I had a duty to perform which superseded every
personal consideration, and that duty was obedience to the House of
which I have the honor of being a member. This is all the apology I
shall make. We are the Commons of Great Britain, and therefore cannot
make apologies. I can make none for my obedience; they want none for
their commands. They gave me this office, not from any confidence in my
ability, but from a confidence in the abilities of those who were to
assist me, and from a confidence in my zeal,--a quality, my Lords, which
oftentimes supplies the want of great abilities.
In considering what relates to the prisoner and to his defence, I find
the whole resolves itself into four heads: first, his demeanor, and his
defence in general; secondly, the principles of his defence; thirdly,
the means of that defence; and, fourthly, the testimonies which he
brings forward to fortify those means, to support those principles, and
to justify that demeanor.
As to his demeanor, my Lords, I will venture to say, that, if we fully
examine the conduct of all prisoners brought before this high tribunal,
from the time that the Duke of Suffolk appeared before it down to the
time of the appearance of my Lord Macclesfield, if we fully examine the
conduct of prisoners in every station of life, from my Lord Bacon, down
to the smugglers who were impeached in the reign of King William, I say,
my Lords, that we shall not, in the whole history of Parliamentary
trials, find anything similar to the demeanor of the prisoner at your
bar. What could have encouraged that demeanor your Lordships will, when
you reflect seriously upon this matter, consider. God forbid that the
authority either of the prosecutor or of the judge should dishearten the
prisoner so as to circumscribe the means or enervate the vigor of his
defence! God forbid that such a thing should even appear to be desired
by anybody in any British tribunal! But, my Lords, there is a behavior
which broadly displays a want of sense, a want of feeling, a want of
decorum,--a behavior which indicates an habitual depravity of mind, that
has no sentiments of propriety, no feeling for the relations of life, no
conformity to the circumstances of human affairs. This behavior does not
indicate the spirit of injured innocence, but the audacity of hardened,
habitual, shameless guilt,--affording legitimate grounds for inferring a
very defective education, very evil society, or very vicious habits of
life. There is, my Lords, a nobleness in modesty, while insolence is
always base and servile. A man who is under the accusation of his
country is under a very great misfortune. His innocence, indeed, may at
length shine out like the sun, yet for a moment it is under a cloud; his
honor is in abeyance, his estimation is suspended, and he stands, as it
were, a doubtful person in the eyes of all human society. In that
situation, not a timid, not an abject, but undoubtedly a modest
behavior, would become a person even of the most exalted dignity and of
the firmest fortitude.
The Romans (who were a people that understood the decorum of life as
well as we do) considered a person accused to stand in such a doubtful
situation that from the moment of accusation he assumed either a
mourning or some squalid garb, although, by the nature of their
constitution, accusations were brought forward by one of their lowest
magistrates. The spirit of that decent usage has continued from the time
of the Romans till this very day. No man was ever brought before your
Lordships that did not carry the outward as well as inward demeanor of
modesty, of fear, of apprehension, of a sense of his situation, of a
sense of our accusation, and a sense of your Lordships' dignity.
These, however, are but outward things; they are, as Hamlet says,
"things which a man may play." But, my Lords, this prisoner has gone a
great deal further than being merely deficient in decent humility.
Instead of defending himself, he has, with a degree of insolence
unparalleled in the history of pride and guilt, cast out a recriminatory
accusation upon the House of Commons. Instead of considering himself as
a person already under the condemnation of his country, and uncertain
whether or not that condemnation shall receive the sanction of your
verdict, he ranks himself with the suffering heroes of antiquity.
Joining with them, he accuses us, the representatives of his country, of
the blackest ingratitude, of the basest motives, of the most abominable
oppression, not only of an innocent, but of a most meritorious
individual, who, in your and in our service, has sacrificed his health,
his fortune, and even suffered his fame and character to be called in
question from one end of the world to the other. This, I say, he charges
upon the Commons of Great Britain; and he charges it before the Court of
Peers of the same kingdom. Had I not heard this language from the
prisoner, and afterwards from his counsel, I must confess I could hardly
have believed that any man could so comport himself at your Lordships'
bar.
After stating in his defence the wonderful things he did for us, he
says,--"I maintained the wars which were of your formation, or that of
others, _not of mine_. I won one member of the great Indian confederacy
from it by an act of seasonable restitution; with another I maintained a
secret intercourse, and converted him into a friend; a third I drew off
by diversion and negotiation, and employed him as the instrument of
peace. When _you_ cried out for peace, and your cries were heard by
those who were the objects of it, I resisted this and every other
species of counteraction by rising in my demands, and accomplished a
peace, and I hope an everlasting one, with one great state; and I at
least afforded the efficient means by which a peace, if not so durable,
more seasonable at least, was accomplished with another. I gave you
_all_; and you have rewarded me with _confiscation, disgrace, and a life
of impeachment_."
Comparing our conduct with that of the people of India, he
says,--"_They_ manifested a generosity of which we have no example in
the European world. Their conduct was the effect of their sense of
gratitude for the benefits they had received from my administration. I
wish I could say as much of my own countrymen."
My Lords, here, then, we have the prisoner at your bar in his demeanor
not defending himself, but recriminating upon his country, charging it
with perfidy, ingratitude, and oppression, and making a comparison of it
with the banians of India, whom he prefers to the Commons of Great
Britain.
My Lords, what shall we say to this demeanor? With regard to the charge
of using him with ingratitude, there are two points to be considered.
First, the charge implies that he had rendered great services; and,
secondly, that he has been falsely accused.
My Lords, as to the great services, they have not, they cannot, come in
evidence before you. If you have received such evidence, you have
received it obliquely; for there is no other direct proof before your
Lordships of such services than that of there having been great
distresses and great calamities in India during his government. Upon
these distresses and calamities he has, indeed, attempted to justify
obliquely the corruption that has been charged upon him; but you have
not properly in issue these services. You cannot admit the evidence of
any such services received directly from him, as a matter of
recriminatory charge upon the House of Commons, because you have not
suffered that House to examine into the validity and merit of this plea.
We have not been heard upon this recriminatory charge, which makes a
considerable part of the demeanor of the prisoner; we cannot be heard
upon it; and therefore I demand, on the part of the Commons of Great
Britain, that it be dismissed from your consideration: and this I
demand, whether you take it as an attempt to render odious the conduct
of the Commons, whether you take it in mitigation of the punishment due
to the prisoner for his crimes, or whether it be adduced as a
presumption that so virtuous a servant never could be guilty of the
offences with which we charge him. In whichever of these lights you may
be inclined to consider this matter, I say you have it not in evidence
before you; and therefore you must expunge it from your thoughts, and
separate it entirely from your judgment. I shall hereafter have
occasion, to say a few words on this subject of _merits_. I have said
thus much at present in order to remove extraneous impressions from your
minds. For, admitting that your Lordships are the best judges, as I well
know that you are, yet I cannot say that you are not men, and that
matter of this kind, however irrelevant, may not make an impression upon
you. It does, therefore, become us to take some occasional notice of
these supposed services, not in the way of argument, but with a view by
one sort of prejudice to destroy another prejudice. If there is anything
in evidence which tends to destroy this plea of merits, we shall recur
to that evidence; if there is nothing to destroy it but argument, we
shall have recourse to that argument; and if we support that argument by
authority and document not in your Lordships' minutes, I hope it will
not be the less considered as good argument because it is so supported.
I must now call your Lordships' attention from the vaunted services of
the prisoner, which have been urged to convict us of ingratitude, to
another part of his recriminatory defence. He says, my Lords, that we
have not only oppressed him with unjust charges, (which is a matter for
your Lordships to judge, and is now the point at issue between us,) but
that, instead of attacking him by fair judicial modes of proceeding, by
stating crimes clearly and plainly, and by proving those crimes, and
showing their necessary consequences, we have oppressed him with all
sorts of foul and abusive language,--so much so, that every part of our
proceeding has, in the eye of the world, more the appearance of private
revenge than of public justice.
Against this impudent and calumnious recriminatory accusation, which
your Lordships have thought good to suffer him to utter here, at a time,
too, when all dignity is in danger of being trodden under foot, we will
say nothing by way of defence. The Commons of Great Britain, my Lords,
are a rustic people: a tone of rusticity is therefore the proper accent
of their Managers. We are not acquainted with the urbanity and
politeness of extortion and oppression; nor do we know anything of the
sentimental delicacies of bribery and corruption. We speak the language
of truth, and we speak it in the plain, simple terms in which truth
ought to be spoken. Even if we have anything to answer for on this head,
we can only answer to the body which we represent and to that body which
hears us: to any others we owe no apology whatever.
The prisoner at your bar admits that the crimes which we charge him
with are of that atrocity, that, if brought home to him, he merits
death. Yet, when, in pursuance of our duty, we come to state these
crimes with their proper criminatory epithets, when we state in strong
and direct terms the circumstances which heighten and aggravate them,
when we dwell on the immoral and heinous nature of the acts, and the
terrible effects which such acts produce, and when we offer to prove
both the principal facts and the aggravatory ones by evidence, and to
show their nature and quality by the rules of law, morality, and policy,
then this criminal, then his counsel, then his accomplices and
hirelings, posted in newspapers and dispersed in circles through every
part of the kingdom, represent him as an object of great compassion,
because he is treated, say they, with, nothing but opprobrious names and
scurrilous invectives.
To all this the Managers of the Commons will say nothing by way of
defence: it would be to betray their trust, if they did. No, my Lords,
they have another and a very different duty to perform on this occasion.
They are bound not to suffer public opinion, which often prevents
judgment and often defeats its effects, to be debauched and corrupted.
Much less is this to be suffered in the presence of our coördinate
branch of legislature, and as it were with your and our own tacit
acquiescence. Whenever the public mind is misled, it becomes the duty of
the Commons of Great Britain to give it a more proper tone and a juster
way of thinking. When ignorance and corruption have usurped the
professor's chair, and placed themselves in the seats of science and of
virtue, it is high time for us to speak out. We know that the doctrines
of folly are of great use to the professors of vice. We know that it is
one of the signs of a corrupt and degenerate age, and one of the means
of insuring its further corruption and degeneracy, to give mild and
lenient epithets to vices and to crimes. The world is much influenced by
names. And as terms are the representatives of sentiments, when persons
who exercise any censorial magistracy seem in their language to
compromise with crimes and criminals by expressing no horror of the one
or detestation of the other, the world will naturally think that they
act merely to acquit themselves in its sight in form, but in reality to
evade their duty. Yes, my Lords, the world must think that such persons
palter with their sacred trust, and are tender to crimes because they
look forward to the future possession of the same power which they now
prosecute, and purpose to abuse it in the manner it has been abused by
the criminal of whom they are so tender.
To remove such an imputation from us, we assert that the Commons of
Great Britain are not to receive instructions about the language which
they ought to hold from the gentlemen who have made profitable studies
in the academies of Benares and of Oude. We know, and therefore do not
want to learn, how to comport ourselves in prosecuting the haughty and
overgrown delinquents of the East. We cannot require to be instructed by
them in what words we shall express just indignation at enormous crimes;
for we have the example of our great ancestors to teach us: we tread in
their steps, and we speak in their language.
Your Lordships well know, for you must be conversant in this kind of
reading, that you once had before you a man of the highest rank in this
country, one of the greatest men of the law and one of the greatest men
of the state, a peer of your own body, Lord Macclesfield. Yet, my Lords,
when that peer did but just modestly hint that he had received hard
measure from the Commons and their Managers, those Managers thought
themselves bound _seriatim_, one after another, to express the utmost
indignation at the charge, in the harshest language that could be used.
Why did they do so? They knew it was the language that became them. They
lived in an age in which politeness was as well understood and as much
cultivated as it is at present; but they knew what they were doing, and
they were resolved to use no language but what their ancestors had used,
and to suffer no insolence which their ancestors would not have
suffered. We tread in their steps; we pursue their method; we learn of
them: and we shall never learn at any other school.
We know from history and the records of this House, that a Lord Bacon
has been before you. Who is there, that, upon hearing this name, does
not instantly recognize everything of genius the most profound,
everything of literature the most extensive, everything of discovery the
most penetrating, everything of observation on human life the most
distinguishing and refined? All these must be instantly recognized, for
they are all inseparably associated with the name of Lord Verulam. Yet,
when this prodigy was brought before your Lordships by the Commons of
Great Britain for having permitted his menial servant to receive
presents, what was his demeanor? Did he require his counsel not "to let
down the dignity of his defence"? No. That Lord Bacon, whose least
distinction was, that he was a peer of England, a Lord High Chancellor,
and the son of a Lord Keeper, behaved like a man who knew himself, like
a man who was conscious of merits of the highest kind, but who was at
the same time conscious of having fallen into guilt. The House of
Commons did not spare him. They brought him to your bar. They found
spots in that sun. And what, I again ask, was his behavior? That of
contrition, that of humility, that of repentance, that which belongs to
the greatest men lapsed and fallen through human infirmity into error.
He did not hurl defiance at the accusations of his country; he bowed
himself before it. Yet, with all his penitence, he could not escape the
pursuit of the House of Commons, and the inflexible justice of this
Court. Your Lordships fined him forty thousand pounds, notwithstanding
all his merits, notwithstanding his humility, notwithstanding his
contrition, notwithstanding the decorum of his behavior, so well suited
to a man under the prosecution of the Commons of England before the
Peers of England. You fined him in a sum fully equal to one hundred
thousand pounds of the present day; you imprisoned him during the King's
pleasure; and you disqualified him forever from having a seat in this
House and any office in this kingdom. This is the way in which the
Commons behaved formerly, and in which your Lordships acted formerly,
when no culprit at this bar dared to hurl a recriminatory accusation
against his prosecutors, or dared to censure the language in which they
expressed their indignation at his crimes.
The Commons of Great Britain, following these examples and fortified by
them, abhor all compromise with guilt either in act or in language.
They will not disclaim any one word that they have spoken, because, my
Lords, they have said nothing abusive or illiberal. It has been, said
that we have used such language as was used to Sir Walter Raleigh, when
he was called, not by the Commons, but by a certain person of a learned
profession, "a spider of hell." My Lords, Sir Walter was a great
soldier, a great mariner, and one of the first scholars of his age. To
call him a spider of hell was not only indecent in itself, but perfectly
foolish, from the term being totally inapplicable to the object, and fit
only for the very pedantic eloquence of the person who used it. But if
Sir Walter Raleigh had been guilty of numberless frauds and
prevarications, if he had clandestinely picked up other men's money,
concealed his peculation by false bonds, and afterwards attempted to
cover it by the cobwebs of the law, then my Lord Coke would have
trespassed a great deal more against decorum than against propriety of
similitude and metaphor.
My Lords, the Managers for the Commons have not used any _inapplicable_
language. We have indeed used, and will again use, such expressions as
are proper to portray guilt. After describing the magnitude of the
crime, we describe the magnitude of the criminal. We have declared him
to be not only a public robber himself, but the head of a system of
robbery, the captain-general of the gang, the chief under whom a whole
predatory band was arrayed, disciplined, and paid. This, my Lords, is
what we offered to prove fully to you, what in part we have proved, and
the whole of which I believe we could prove. In developing such a mass
of criminality and in describing a criminal of such magnitude as we
have now brought before you, we could not use lenient epithets without
compromising with crime. We therefore shall not relax in our pursuits
nor in our language. No, my Lords, no! we shall not fail to feel
indignation, wherever our moral nature has taught us to feel it; nor
shall we hesitate to speak the language which is dictated by that
indignation. Whenever men are oppressed where they ought to be
protected, we called [call?] it tyranny, and we call the actor a tyrant.
Whenever goods are taken by violence from the possessor, we call it a
robbery, and the person who takes it we call a robber. Money
clandestinely taken from the proprietor we call theft, and the person
who takes it we call a thief. When a false paper is made out to obtain
money, we call the act a forgery. That steward who takes bribes from his
master's tenants, and then, pretending the money to be his own, lends it
to that master and takes bonds for it to himself, we consider guilty of
a breach of trust; and the person who commits such crimes we call a
cheat, a swindler, and a forger of bonds. All these offences, without
the least softening, under all these names, we charge upon this man. We
have so charged in our record, we have so charged in our speeches; and
we are sorry that our language does not furnish terms of sufficient
force and compass to mark the multitude, the magnitude, and the atrocity
of his crimes.
How came it, then, that the Commons of Great Britain should be
calumniated for the course which they have taken? Why should it ever
have been supposed that we are actuated by revenge? I answer, There are
two very sufficient causes: corruption and ignorance. The first disposes
an innumerable multitude of people to a fellow-feeling with the
prisoner. Under the shadow of his crimes thousands of fortunes have been
made; and therefore thousands of tongues are employed to justify the
means by which these fortunes were made. When they cannot deny the
facts, they attack the accusers,--they attack their conduct, they attack
their persons, they attack their language, in every possible manner. I
have said, my Lords, that ignorance is the other cause of this calumny
by which the House of Commons is assailed. Ignorance produces a
confusion of ideas concerning the decorum of life, by confounding the
rules of private society with those of public function. To talk, as we
here talk, to persons in a mixed company of men and women, would violate
the law of such societies; because they meet for the sole purpose of
social intercourse, and not for the exposure, the censure, the
punishment of crimes: to all which things private societies are
altogether incompetent. In them crimes can never be regularly stated,
proved, or refuted. The law has therefore appointed special places for
such inquiries; and if in any of those places we were to apply the
emollient language of drawing-rooms to the exposure of great crimes, it
would be as false and vicious in taste and in morals as to use the
criminatory language of this hall in drawing and assembling rooms would
be misplaced and ridiculous. Every one knows that in common society
palliating names are given to vices. Adultery in a lady is called
gallantry; the gentleman is commonly called a man of good fortune,
sometimes in French and sometimes in English. But is this the tone which
would become a person in a court of justice, calling these people to an
account for that horrible crime which destroys the basis of society?
No, my Lords, this is not the tone of such proceedings. Your Lordships
know that it is not; the Commons know that it is not; and because we
have acted on that knowledge, and stigmatized crimes with becoming
indignation, we are said to be actuated rather by revenge than justice.
If it should still be asked why we show sufficient acrimony to excite a
suspicion of being in any manner influenced by malice or a desire of
revenge, to this, my Lords, I answer, Because we would be thought to
know our duty, and to have all the world know how resolutely we are
resolved to perform it. The Commons of Great Britain are not disposed to
quarrel with the Divine Wisdom and Goodness, which has moulded up
revenge into the frame and constitution of man. He that has made us what
we are has made us at once resentful and reasonable. Instinct tells a
man that he ought to revenge an injury; reason tells him that he ought
not to be a judge in his own cause. From that moment revenge passes from
the private to the public hand; but in being transferred it is far from
being extinguished. My Lords, it is transferred as a sacred trust to be
exercised for the injured, in measure and proportion, by persons who,
feeling as he feels, are in a temper to reason better than he can
reason. Revenge is taken out of the hands of the original injured
proprietor, lest it should be carried beyond the bounds of moderation
and justice. But, my Lords, it is in its transfer exposed to a danger of
an opposite description. The delegate of vengeance may not feel the
wrong sufficiently: he may be cold and languid in the performance of his
sacred duty. It is for these reasons that good men are taught to
tremble even at the first emotions of anger and resentment for their own
particular wrongs; but they are likewise taught, if they are well
taught, to give the loosest possible rein to their resentment and
indignation, whenever their parents, their friends, their country, or
their brethren of the common family of mankind are injured. Those who
have not such feelings, under such circumstances, are base and
degenerate. These, my Lords, are the sentiments of the Commons of Great
Britain.
Lord Bacon has very well said, that "revenge is a kind of wild justice."
It is so, and without this wild austere stock there would be no justice
in the world. But when, by the skilful hand of morality and wise
jurisprudence, a foreign scion, but of the very same species, is grafted
upon it, its harsh quality becomes changed, it submits to culture, and,
laying aside its savage nature, it bears fruits and flowers, sweet to
the world, and not ungrateful even to heaven itself, to which it
elevates its exalted head. The fruit of this wild stock is revenge
regulated, but not extinguished,--revenge transferred from the suffering
party to the communion and sympathy of mankind. This is the revenge by
which we are actuated, and which we should be sorry, if the false, idle,
girlish, novel-like morality of the world should extinguish in the
breast of us who have a great public duty to perform.
This sympathetic revenge, which is condemned by clamorous imbecility, is
so far from being a vice, that it is the greatest of all possible
virtues,--a virtue which the uncorrupted judgment of mankind has in all
ages exalted to the rank of heroism. To give up all the repose and
pleasures of life, to pass sleepless nights and laborious days, and,
what is ten times more irksome to an ingenuous mind, to offer oneself to
calumny and all its herd of hissing tongues and poisoned fangs, in order
to free the world from fraudulent prevaricators, from cruel oppressors,
from robbers and tyrants, has, I say, the test of heroic virtue, and
well deserves such a distinction. The Commons, despairing to attain the
heights of this virtue, never lose sight of it for a moment. For
seventeen years they have, almost without intermission, pursued, by
every sort of inquiry, by legislative and by judicial remedy, the cure
of this Indian malady, worse ten thousand times than the leprosy which
our forefathers brought from the East. Could they have done this, if
they had not been actuated by some strong, some vehement, some perennial
passion, which, burning like the Vestal fire, chaste and eternal, never
suffers generous sympathy to grow cold in maintaining the rights of the
injured or in denouncing the crimes of the oppressor?
My Lords, the Managers for the Commons have been actuated by this
passion; my Lords, they feel its influence at this moment; and so far
from softening either their measures or their tone, they do here, in the
presence of their Creator, of this House, and of the world, make this
solemn declaration, and nuncupate this deliberate vow: that they will
ever glow with the most determined and unextinguishable animosity
against tyranny, oppression, and peculation in all, but more
particularly as practised by this man in India; that they never will
relent, but will pursue and prosecute him and it, till they see corrupt
pride prostrate under the feet of justice. We call upon your Lordships
to join us; and we have no doubt that you will feel the same sympathy
that we feel, or (what I cannot persuade my soul to think or my mouth to
utter) you will be identified with the criminal whose crimes you excuse,
and rolled with him in all the pollution of Indian guilt, from
generation to generation. Let those who feel with me upon this occasion
join with me in this vow: if they will not, I have it all to myself.
It is not to defend ourselves that I have addressed your Lordships at
such length on this subject. No, my Lords, I have said what I considered
necessary to instruct the public upon the principles which induced the
House of Commons to persevere in this business with a generous warmth,
and in the indignant language which Nature prompts, when great crimes
are brought before men who feel as they ought to feel upon such
occasions.
* * * * *
I now proceed, my Lords, to the next recriminatory charge, which is
_delay_. I confess I am not astonished at this charge. From the first
records of human impatience down to the present time, it has been
complained that the march of violence and oppression is rapid, but that
the progress of remedial and vindictive justice, even the divine, has
almost always favored the appearance of being languid and sluggish.
Something of this is owing to the very nature and constitution of human
affairs; because, as justice is a circumspect, cautious, scrutinizing,
balancing principle, full of doubt even of itself, and fearful of doing
wrong even to the greatest wrong-doers, in the nature of things its
movements must be slow in comparison with the headlong rapidity with
which avarice, ambition, and revenge pounce down upon the devoted prey
of those violent and destructive passions. And indeed, my Lords, the
disproportion between crime and justice, when seen in the particular
acts of either, would be so much to the advantage of crimes and
criminals, that we should find it difficult to defend laws and
tribunals, (especially in great and arduous cases like this,) if we did
not look, not to the _immediate_, not to the _retrospective_, but to the
_provident_ operation of justice. Its chief operation is in its future
example; and this turns the balance, upon the total effect, in favor of
vindictive justice, and in some measure reconciles a pious and humble
mind to this great mysterious dispensation of the world.
Upon the charge of delay in this particular cause, my Lords, I have only
to say that the business before you is of immense magnitude. The
prisoner himself says that all the acts of his life are committed in it.
With a due sense of this magnitude, we know that the investigation could
not be short to us, nor short to your Lordships; but when we are called
upon, as we have been daily, to sympathize with the prisoner in that
delay, my Lords, we must tell you that we have no sympathy with him.
Rejecting, as we have done, all false, spurious, and hypocritical
virtues, we should hold it to be the greatest of all crimes to bestow
upon the oppressors that pity which belongs to the oppressed. The
unhappy persons who are wronged, robbed, and despoiled have no remedy
but in the sympathies of mankind; and when these sympathies are suffered
to be debauched, when they are perversely carried from the victim to the
oppressor, then we commit a robbery still greater than that which was
committed by the criminal accused.
My Lords, we do think this process long; we lament it in every sense in
which it ought to be lamented; but we lament still more that the Begums
have been so long without having a just punishment inflicted upon their
spoiler. We lament that Cheyt Sing has so long been a wanderer, while
the man who drove him from his dominions is still unpunished. We are
sorry that Nobkissin has been cheated of his money for fourteen years,
without obtaining redress. These are our sympathies, my Lords; and thus
we reply to this part of the charge.
My Lords, there are some matters of fact in this charge of delay which I
must beg your Lordships will look into. On the 19th of February, 1789,
the prisoner presented a petition to your Lordships, in which he states,
after many other complaints, that a great number of his witnesses were
obliged to go to India, by which he has lost the benefit of their
testimony, and that a great number of your Lordships' body were dead, by
which he has lost the benefit of their judgment. As to the hand of God,
though some members of your House may have departed this life since the
commencement of this trial, yet the body always remains entire. The
evidence before you is the same; and therefore there is no reason to
presume that your final judgment will be affected by these afflicting
dispensations of Providence. With regard to his witnesses, I must beg to
remind your Lordships of one extraordinary fact. This prisoner has sent
to India, and obtained, not testimonies, but testimonials to his general
good behavior. He has never once applied, by commission or otherwise, to
falsify any one fact that is charged upon, him,--no, my Lords, not one.
Therefore that part of his petition which states the injury he has
received from the Commons of Great Britain is totally false and
groundless. For if he had any witnesses to examine, he would not have
failed to examine them; if he had asked for a commission to receive
their depositions, a commission would have been granted; if, without a
commission, he had brought affidavits to facts, or regular recorded
testimony, the Commons of Great Britain would never have rejected such
evidence, even though they could not have cross-examined it.
Another complaint is, that many of his witnesses were obliged to leave
England before he could make use of their evidence. My Lords, no delay
in the trial has prevented him from producing any evidence; for we were
willing that any of his witnesses should be examined at any time most
convenient to himself. If many persons connected with his measures are
gone to India, during the course of his trial, many others have returned
to England. Mr. Larkins returned. Was the prisoner willing to examine
him? No: and it was nothing but downright shame, and the presumptions
which he knew would be drawn against him, if he did not call this
witness, which finally induced him to make use of his evidence. We
examined Mr. Larkins, my Lords; we examined all the prisoner's
witnesses; your Lordships have their testimony; and down to this very
hour he has not put his hand upon any one whom he thought a proper and
essential witness to the facts, or to any part of the cause, whose
examination has been denied him; nor has he even stated that any man, if
brought here, would prove such and such points. No, not one word to this
effect has ever been stated by the prisoner.
There is, my Lords, another case, which was noticed by my honorable
fellow Manager yesterday. Mr. Belli, the confidential secretary of the
prisoner, was agent and contractor for stores; and this raised a
suspicion that the contracts were held by him for the prisoner's
advantage. Mr. Belli was here during the whole time of the trial, and
six weeks after we had closed our evidence. We had then no longer the
arrangement of the order of witnesses, and he might have called whom he
pleased. With the full knowledge of these circumstances, that witness
did he suffer to depart for India, if he did not even encourage his
departure. This, my Lords, is the kind of damage which he has suffered
by the want of witnesses, through the protraction of this trial.
But the great and serious evil which he complains of, as being
occasioned by our delay, is of so extraordinary a nature that I must
request your Lordships to examine it with extraordinary strictness and
attention. In the petition before your Lordships, the prisoner asserts
that he was under the necessity, through his counsel and solicitors, "of
collecting and collating from the voluminous records of the Company the
whole history of his public life, in order to form a complete defence to
every allegation which the Honorable House of Commons had preferred
against him, and that he has expended upwards of thirty thousand pounds
in preparing the materials of his defence."
It is evident, my Lords, that the expenditure of this thirty thousand
pounds is not properly connected with the delay of which he complains;
for he states that he had incurred this loss merely in collecting and
collating materials, previous to his defence before your Lordships. If
this were true, and your Lordships were to admit the amount as a rule
and estimate by which the aggregate of his loss could be ascertained,
the application of the rule of three to the sum and time given would
bring out an enormous expenditure in the long period which has elapsed
since the commencement of the trial,--so enormous, that, if this
monstrous load of oppression has been laid upon him by the delay of the
Commons, I believe no man living can stand up in our justification. But,
my Lords, I am to tell your Lordships some facts, into which we trust
_you_, will inquire: for this business is not in our hands, nor can we
lay it as a charge before you. Your own Journals have recorded the
document, in which the prisoner complains bitterly of the House of
Commons, and indeed of the whole judicature of the country,--a complaint
which your Lordships will do well to examine.
When we first came to a knowledge of this petition, which was not till
some time after it was presented, I happened to have conversation with a
noble lord,--I know not whether he be in his place in the House or not,
but I think I am not irregular in mentioning his name. When I mention
Lord Suffolk, I name a peer whom honor, justice, veracity, and every
virtue that distinguishes the man and the peer would claim for their
own. My Lord Suffolk told me, that, in a conversation with the late Lord
Dover, who brought the prisoner's petition into your House, he could not
refrain from expressing his astonishment at that part of the petition
which related to the expense Mr. Hastings had been at; and particularly
as a complaint had been made in the House of the enormous expense of the
prosecution, which at that time had only amounted to fourteen thousand
pounds, although the expense of the prosecutor is generally greater than
that of the defendant, and public proceedings more expensive than
private ones. Lord Dover said, that, before he presented the petition,
he had felt exactly in the same manner; but that Mr. Hastings assured
him that six thousand pounds had been paid to copying clerks in the
India House, and that from this circumstance he might judge of the other
expenses. Lord Dover was satisfied with this assurance, and presented
the petition, which otherwise he should have declined to do, on account
of the apparent enormity of the allegation it contained. At the time
when Lord Suffolk informed me of these particulars, (with a good deal of
surprise and astonishment,) I had not leisure to go down to the India
House in order to make inquiries concerning them, but I afterwards asked
the Secretary, Mr. Hudson, to whom _we_ had given a handsome reward,
what sums he had received from Mr. Hastings for his services upon this
occasion, and the answer was, "Not one shilling." Not one shilling had
Mr. Hudson received from Mr. Hastings. The clerks of the Company
informed us that the Court of Directors had ordered that every paper
which Mr. Hastings wanted should be copied for him gratuitously,--and
that, if any additional clerks were wanting for the effectual execution
of his wishes, the expense would be defrayed by the Directors. Hearing
this account, I next inquired what _expedition money_ might have been
given to the clerks: for we know something of this kind is usually done.
In reply to this question, Mr. Hudson told me that at various times they
had received in little driblets to the amount of ninety-five pounds, or
thereabouts. In this way the account stood when I made this inquiry,
which was at least half a year after the petition had been presented to
your Lordships. Thus the whole story of the six thousand pounds was
absolutely false. At that time there was not one word of truth in it,
whatever be the amount of the sums which he has paid since. Your
Lordships will now judge whether you have been abused by false
allegations or not,--allegations which could scarcely admit of being
true, and which upon the best inquiry I found absolutely false; and I
appeal to the testimony of the noble lord, who is now living, for the
truth of the account he received from the worthy and respectable peer
whose loss the nation has to bewail.
There are many other circumstances of fraud and falsehood attending this
petition, (we must call things by their proper names, my Lords,)--there
are, I say, many circumstances of fraud and falsehood. We know it to
have been impossible, at the time of presenting this petition, that this
man should have expended thirty thousand pounds in the preparation of
materials for his defence; and your Lordships' justice, together with
the credit of the House of Commons, are concerned in the discovery of
the truth. There is, indeed, an ambiguous word in the petition. He
asserts that he is _engaged_ for the payment of that sum. We asked the
clerks of the India House whether he had given them any bond, note,
security, or promise of payment: they assured us that he had not: they
will be ready to make the same assurance to your Lordships, when you
come to inquire into this matter, which before you give judgment we
desire and claim that you will do. All is concealment and mystery on the
side of the prisoner; all is open and direct with us. We are desirous
that everything which is concealed may be brought to light.
In contradiction, then, to this charge of oppression and of an attempt
to ruin his fortune, your Lordships will see that at the time when he
made this charge he had not been, in fact, nor was for a long time
after, one shilling out of pocket. But some other person had become
security to his attorney for him. What, then, are we to think of these
men of business, of these friends of Mr. Hastings, who, when he is
possessed of nothing, are contented to become responsible for thirty
thousand pounds, (was it thirty thousand pounds out of the bullock
contracts?)--responsible, I say, for this sum, in order to maintain this
suit previous to its actual commencement, and who consequently must be
so engaged for every article of expense that has followed from that time
to this?
Thus much we have thought it necessary to say upon this part of the
recriminatory charge of delay. With respect to the delay in general, we
are at present under an account to our constituents upon that subject.
To them we shall give it. We shall not give any further account of it to
your Lordships. The means belong to us as well as to you of removing
these charges. Your Lordships may inquire upon oath, as we have done in
our committee, into all the circumstances of these allegations. I hope
your Lordships will do so, and will give the Commons an opportunity of
attending and assisting at this most momentous and important inquiry.
* * * * *
The next recriminatory charge made upon us by the prisoner is, that,
merely to throw an odium upon him, we have brought forward a great deal
of irrelevant matter, which could not be proved regularly in the course
of examination at your bar, and particularly in the opening speech,
which I had the honor of making on the subject.
Your Lordships know very well that we stated in our charge that great
abuses had prevailed in India, that the Company had entered into
covenants with their servants respecting those abuses, that an act of
Parliament was made to prevent their recurrence, and that Mr. Hastings
still continued in their practice. Now, my Lords, having stated this,
nothing could be more regular, more proper, and more pertinent, than for
us to justify both the covenants required by the Company and the act
made to prevent the abuses which existed in India. We therefore went
through those abuses; we stated them, and were ready to prove every
material word and article in them. Whether they were personally relevant
or irrelevant to the prisoner we cared nothing. We were to make out from
the records of the House (which records I can produce, whenever I am
called upon for them) all these articles of abuse and grievance; and we
have stated these abuses as the grounds of the Company's provisional
covenants with its servants, and of the act of Parliament. We have
stated them under two heads, violence and corruption: for these crimes
will be found, my Lords, in almost every transaction with the native
powers; and the prisoner is directly or indirectly involved in every
part of them. If it be still objected, that these crimes are irrelevant
to the charge, we answer, that we did not introduce them as matter of
charge. We say they were not irrelevant to the proof of the preamble of
our charge, which preamble is perfectly relevant in all its parts. That
the matters stated in it are perfectly true we vouch the House of
Commons, we vouch the very persons themselves who were concerned in the
transactions. When Arabic authors are quoted, and Oriental tales told
about _flashes of lightning_ and _three seals_, we quote the very
parties themselves giving this account of their own conduct to a
committee of the House of Commons.
Your Lordships will remember that a most reverend prelate, who cannot be
named without every mark of respect and attention, conveyed a petition
to your Lordships from a gentleman concerned in one of those narratives.
Upon your Lordships' table that petition still lies. For the production
of this narrative we are not answerable to this House; your Lordships
could not make us answerable to him; but we are answerable to our own
House, we are answerable to our own honor, we are answerable to all the
Commons of Great Britain for whatever we have asserted in their name.
Accordingly, General Burgoyne, then a member of this Committee of
Managers, and myself, went down into the House of Commons; we there
restated the whole affair; we desired that an inquiry should be made
into it, at the request of the parties concerned. But, my Lords, they
have never asked for inquiry from that day to this. Whenever he or they
who are criminated (not by us, but in this volume of Reports that is in
my hand) desire it, the House will give them all possible satisfaction
upon the subject.
A similar complaint was made to the House of Commons by the prisoner,
that matters irrelevant to the charge were brought up hither. Was it not
open to him, and has he had no friends in the House of Commons, to call
upon the House, during the whole period of this proceeding, to examine
into the particulars adduced in justification of the preamble of the
charge against him, in justification of the covenants of the Company, in
justification of the act of Parliament? It was in his power to do it; it
is in his power still; and if it be brought before that tribunal, to
which I and my fellow Managers are alone accountable, we will lay before
that tribunal such matters as will sufficiently justify our mode of
proceeding, and the resolution of the House of Commons. I will not,
therefore, enter into the particulars (because they cannot be entered
into by your Lordships) any further than to say, that, if we had ever
been called upon to prove the allegations which we have made, not in the
nature of a charge, but as bound in duty to this Court, and in justice
to ourselves, we should have been ready to enter into proof. We offered
to do so, and we now repeat the offer.
* * * * *
There was another complaint in the prisoner's petition, which did not
apply to the words of the preamble, but to an allegation in the charge
concerning abuses in the revenue, and the ill consequences which arose
from them. I allude to those shocking transactions, which nobody can
mention without horror, in Rampore and Dinagepore, during the government
of Mr. Hastings, and which we attempted to bring home to him. What did
he do in this case? Did he endeavor to meet these charges fairly, as he
might have done? No, my Lords: what he said merely amounted to
this:--"Examination into these charges would vindicate my reputation
before the world; but I, who am the guardian of my own honor and my own
interests, choose to avail myself of the rules and orders of this
House, and I will not suffer you to enter upon that examination."
My Lords, we admit, you are the interpreters of your own rules and
orders. We likewise admit that our own honor may be affected by the
character of the evidence which we produce to you. But, my Lords, they
who withhold their defence, who suffer themselves, as they say, to be
cruelly criminated by unjust accusation, and yet will not permit the
evidence of their guilt or innocence to be produced, are themselves the
causes of the irrelevancy of all these matters. It cannot justly be
charged on us; for we have never offered any matter here which we did
not declare our readiness upon the spot to prove. Your Lordships did not
think fit to receive that proof. We do not now censure your Lordships
for your determination: that is not the business of this day. We refer
to your determination for the purpose of showing the falsehood of the
imputation which the prisoner has cast upon us, of having oppressed him
by delay and irrelevant matter. We refer to it in order to show that the
oppression rests with himself, that it is all his own.
Well, but Mr. Hastings complained also to the House of Commons. Has he
pursued the complaint? No, he has not; and yet this prisoner, and these
gentlemen, his learned counsel, have dared to reiterate their complaints
of us at your Lordships' bar, while we have always been, and still are,
ready to prove both the atrocious nature of the facts, and that they are
_referable_ to the prisoner at your bar. To this, as I have said before,
the prisoner has objected; this we are not permitted to do by your
Lordships: and therefore, without presuming to blame your
determination, I repeat, that we throw the blame directly upon himself,
when he complains that his private character suffers without the means
of defence, since he objects to the use of means of defence which are at
his disposal.
Having gone through this part of the prisoner's recriminatory charge, I
shall close my observations on his demeanor, and defer my remarks on his
complaint of our ingratitude until we come to consider his set-off of
services.
* * * * *
The next subject for your Lordships' consideration is the principle of
the prisoner's defence. And here we must observe, that, either by
confession or conviction, we are possessed of the facts, and perfectly
agreed upon the matter at issue between us. In taking a view of the laws
by which you are to judge, I shall beg leave to state to you upon what
principles of law the House of Commons has criminated him, and upon what
principles of law, or pretended law, he justifies himself: for these are
the matters at issue between us; the matters of fact, as I have just
said, being determined either by confession on his part or by proof on
ours.
My Lords, we acknowledge that Mr. Hastings was invested with
discretionary power; but we assert that he was bound to use that power
according to the established rules of political morality, humanity, and
equity. In all questions relating to foreign powers he was bound to act
under the Law of Nature and under the Law of Nations, as it is
recognized by the wisest authorities in public jurisprudence; in his
relation to this country he was bound to act according to the laws and
statutes of Great Britain, either in their letter or in their spirit;
and we affirm, that in his relation to the people of India he was bound
to act according to the largest and most liberal construction of their
laws, rights, usages, institutions, and good customs; and we furthermore
assert, that he was under an express obligation to yield implicit
obedience to the Court of Directors. It is upon these rules and
principles the Commons contend that Mr. Hastings ought to have regulated
his government; and not only Mr. Hastings, but all other governors. It
is upon these rules that he is responsible; and upon these rules, and
these rules only, your Lordships are to judge.
My Lords, long before the Committee had resolved upon this impeachment,
we had come, as I have told your Lordships, to forty-five resolutions,
every one criminatory of this man, every one of them bottomed upon the
principles which I have stated. We never will nor can we abandon them;
and we therefore do not supplicate your Lordships upon this head, but
claim and demand of right, that you will judge him upon those
principles, and upon no other. If once they are evaded, you can have no
rule for your judgment but your caprices and partialities.
Having thus stated the principles upon which the Commons hold him and
all governors responsible, and upon which we have grounded our
impeachment, and which must be the grounds of your judgment, (and your
Lordships will not suffer any other ground to be mentioned to you,) we
will now tell you what are the grounds of his defence.
He first asserts, that he was possessed of an arbitrary and despotic
power, restrained by no laws but his own will. He next says, that "the
rights of the people he governed in India are nothing, and that the
rights of the government are everything." The people, he asserts, have
no liberty, no laws, no inheritance, no fixed property, no descendable
estate, no subordinations in society, no sense of honor or of shame, and
that they are only affected by punishment so far as punishment is a
corporal infliction, being totally insensible of any difference between
the punishment of man and beast. These are the principles of his Indian
government, which Mr. Hastings has avowed in their full extent. Whenever
precedents are required, he cites and follows the example of avowed
tyrants, of Aliverdy Khân, Cossim Ali Khân, and Sujah Dowlah. With an
avowal of these principles he was pleased first to entertain the House
of Commons, the _active_ assertors and conservators of the rights,
liberties, and laws of his country; and then to insist upon them more
largely and in a fuller detail before this awful tribunal, the _passive_
judicial conservator of the same great interests. He has brought out
these blasphemous doctrines in this great temple of justice, consecrated
to law and equity for a long series of ages. He has brought them forth
in Westminster Hall, in presence of all the Judges of the land, who are
to execute the law, and of the House of Lords, who are bound as its
guardians not to suffer the words "arbitrary power" to be mentioned
before them. For I am not again to tell your Lordships, that arbitrary
power is treason in the law,--that to mention it with law is to commit a
contradiction in terms. They cannot exist in concert; they cannot hold
together for a moment.
Let us now hear what the prisoner says. "The sovereignty which they [the
subahdars, or viceroys of the Mogul empire] assumed, it fell to my lot,
very unexpectedly, to exert; and whether or not such power, or powers of
that nature, were delegated to me by any provisions of any act of
Parliament I confess myself too little of a lawyer to pronounce. I only
know that the acceptance of the sovereignty of Benares, &c., is not
acknowledged or admitted by any act of Parliament; and yet, by the
particular interference of the majority of the Council, the Company is
clearly and indisputably seized of that sovereignty. If, therefore, the
_sovereignty_ of Benares, as ceded to us by the Vizier, have _any rights
whatever_ annexed to it, and be not a mere empty word without meaning,
those rights must be such as are held, countenanced, and established by
the law, custom, and usage of the Mogul empire, and not by the
provisions of any British act of Parliament hitherto enacted. _Those
rights_, and none other, I have been the involuntary instrument of
enforcing. And if any future act of Parliament shall positively or by
implication tend to annihilate those very rights, or their exertion, as
I have exerted them, I much fear that the boasted sovereignty of
Benares, which was held up as an acquisition almost obtruded on the
Company against my consent and opinion, (for I acknowledge that even
then I foresaw many difficulties and inconveniences in its future
exercise,)--I fear, I say, that this sovereignty will be found a burden
instead of a benefit, a heavy clog rather than a precious gem to its
present possessors: I mean, unless the whole of our territory in that
quarter shall be rounded and made an uniform compact body by one grand
and systematic arrangement,--such an arrangement as shall do away all
the mischiefs, doubts, and inconveniences (both to the governors and
the governed) arising from the variety of tenures, rights, and claims in
all cases of landed property and feudal jurisdiction in India, from the
informality, invalidity, and instability of all engagements in so
divided and unsettled a state of society, and from the unavoidable
anarchy and confusion of different laws, religions, and prejudices,
moral, civil, and political, all jumbled together in one unnatural and
discordant mass. Every part of Hindostan has been constantly exposed to
these and similar disadvantages ever since the Mahometan conquests. The
Hindoos, who never incorporated with their conquerors, were kept in
order only by the strong hand of power. The constant necessity of
similar exertions would increase at once their energy and extent. So
that rebellion itself is the parent and promoter of _despotism_.
Sovereignty in India implies nothing else. For I know not how we can
form an estimate of its powers, but from its visible effects; and those
are everywhere the same from Cabool to Assam. The whole history of Asia
is nothing more than precedents to prove the invariable exercise of
arbitrary power. To all this I strongly alluded in the minutes I
delivered in Council, when the treaty with the new Vizier was on foot in
1775; and I wished to make Cheyt Sing independent, because in India
dependence included a thousand evils, many of which I enumerated at that
time, and they are entered in the ninth clause of the first section of
this charge. I knew the powers with which an Indian sovereignty is
armed, and the dangers to which tributaries are exposed. I knew, that,
from the history of Asia, and from the very nature of mankind, the
subjects of a despotic empire are always vigilant for the moment to
rebel, and the sovereign is ever jealous of rebellious intentions. A
zemindar is an Indian subject, and as such exposed to the common lot of
his fellows. _The mean and depraved state of a mere zemindar_ is
therefore this very dependence above mentioned on a despotic government,
this very proneness to shake off his allegiance, and this very exposure
to continual danger from his sovereign's jealousy, which are consequent
on the political state of Hindostanic governments. Bulwant Sing, if he
had been, and Cheyt Sing, as long as he was, a zemindar, stood exactly
in this _mean and depraved state_ by the constitution of his country. I
did not make it for him, but would have secured him from it. Those who
made him a zemindar entailed upon him the consequences of so mean and
depraved a tenure. Aliverdy Khân and Cossim Ali fined all their
zemindars on the necessities of war, and on every pretence either of
court necessity or court extravagance."
I beseech your Lordships seriously to look upon the whole nature of the
principles upon which the prisoner defends himself. He appeals to the
custom and usage of the Mogul empire; and the constitution of that
empire is, he says, arbitrary power. He says, that he does not know
whether any act of Parliament bound him not to exercise this arbitrary
power, and that, if any such act should in future be made, it would be
mischievous and ruinous to our empire in India. Thus he has at once
repealed all preceding acts, he has annulled by prospect every future
act you can make; and it is not in the power of the Parliament of Great
Britain, without ruining the empire, to hinder his exercising this
despotic authority. All Asia is by him disfranchised at a stroke. Its
inhabitants have no rights, no laws, no liberties; their state is mean
and depraved; they may be fined for any purpose of court extravagance or
prodigality,--or as Cheyt Sing was fined by him, not only upon every
war, but upon every pretence of war.
This is the account he gives of his power, and of the people subject to
the British government in India. We deny that the act of Parliament gave
him any such power; we deny that the India Company gave him any such
power, or that they had ever any such power to give; we even deny that
there exists in all the human race a power to make the government of any
state dependent upon individual will. We disclaim, we reject all such
doctrines with disdain and indignation; and we have brought them up to
your Lordships to be tried at your bar.
What must be the condition of the people of India, governed, as they
have been, by persons who maintain these principles as maxims of
government, and not as occasional deviations caused by the irregular
will of man,--principles by which the whole system of society is to be
controlled, not by law, reason, or justice, but by the will of one man?
Your Lordships will remark, that not only the whole of the laws, rights,
and usages, but the very being of the people, are exposed to ruin: for
Mr. Hastings says, that the people may be fined, that they may be
exiled, that they may be imprisoned, and that even their lives are
dependent upon the mere will of their foreign master; and that he, the
Company's Governor, exercised that will under the authority of this
country. Remark, my Lords, his application of this doctrine. "I would,"
he says, "have kept Cheyt Sing from the consequences of this dependence,
by making him independent, and not in any manner subjecting him to our
government. The moment he came into a state of dependence upon the
British government, all these evils attached upon him.--It is," he adds,
"disagreeable to me to exert such powers; but I know they must be
exerted; and I declare there is no security from this arbitrary power,
but by having nothing to do with the British government."
My Lords, the House of Commons has already well considered what may be
our future moral and political condition, when the persons who come from
that school of pride, insolence, corruption, and tyranny are more
intimately mixed up with us of purer morals. Nothing but contamination
can be the result, nothing but corruption can exist in this country,
unless we expunge this doctrine out of the very hearts and souls of the
people. It is not to the gang of plunderers and robbers of which I say
this man is at the head, that we are only, or indeed principally, to
look. Every man in Great Britain will be contaminated and must be
corrupted, if you let loose among us whole legions of men, generation
after generation, tainted with these abominable vices, and avowing these
detestable principles. It is, therefore, to preserve the integrity and
honor of the Commons of Great Britain, that we have brought this man to
your Lordships' bar.
When these matters were first explained to your Lordships, and strongly
enforced by abilities greater than I can exert, there was something like
compunction shown by the prisoner: but he took the most strange mode to
cover his guilt. Upon the cross-examination of Major Scott, he
discovered all the engines of this Indian corruption. Mr. Hastings got
that witness to swear that this defence of his, from which the passages
I have read to your Lordships are extracted, was not his, but that it
was the work of his whole Council, composed of Mr. Middleton, Mr. Shore,
Mr. Halhed, Mr. Baber,--the whole body of his Indian Cabinet Council;
that this was their work, and not his; and that he disclaimed it, and
therefore that it would be wrong to press it upon him. Good God! my
Lords, what shall we say in this stage of the business? The prisoner put
in an elaborate defence: he now disclaims that defence. He told us that
it was of his own writing, that he had been able to compose it in five
days; and he now gets five persons to contradict his own assertions, and
to disprove on oath his most solemn declarations.
My Lords, this business appears still more alarming, when we find not
only Mr. Hastings, but his whole Council, engaged in it. I pray your
Lordships to observe, that Mr. Halhed, a person concerned with Mr.
Hastings in compiling a code of Gentoo laws, is now found to be one of
the persons to whom this very defence is attributed which contains such
detestable and abominable doctrines. But are we to consider the contents
of this paper as the defence of the prisoner or not? Will any one say,
that, when an answer is sworn to in Chancery, when an answer is given
here to an impeachment of the Commons, or when a plea is made to an
indictment, that it is drawn by the defendant's counsel, and therefore
is not his? Did we not all hear him read this defence in part at our
bar?--did we not see him hand it to his secretary to have it read by his
son?--did he not then hear it read from end to end?--did not he himself
desire it to be printed, (for it was no act of ours,) and did he not
superintend and revise the press?--and has any breath but his own
breathed upon it? No, my Lords, the whole composition is his, by writing
or adoption; and never, till he found it pressed him in this House,
never, till your Lordships began to entertain the same abhorrence of it
that we did, did he disclaim it.
But mark another stage of the propagation of these horrible principles.
After having grounded upon them the defence of his conduct against our
charge, and after he had got a person to forswear them for him, and to
prove him to have told falsehoods of the grossest kind to the House of
Commons, he again adheres to this defence. The dog returned to his
vomit. After having vomited out his vile, bilious stuff of arbitrary
power, and afterwards denied it to be his, he gets his counsel in this
place to resort to the loathsome mess again. They have thought proper,
my Lords, to enter into an extended series of quotations from books of
travellers, for the purpose of showing that despotism was the only
principle of government acknowledged in India,--that the people have no
laws, no rights, no property movable or immovable, no distinction of
ranks, nor any sense of disgrace. After citing a long line of travellers
to this effect, they quote Montesquieu as asserting the same facts,
declaring that the people of India had no sense of honor, and were only
sensible of the whip as far as it produced corporal pain. They then
proceed to state that it was a government of misrule, productive of no
happiness to the people, and that it so continued until subverted by the
free government of Britain,--namely, the government that Mr. Hastings
describes as having himself exercised there.
My Lords, if the prisoner can succeed in persuading us that these people
have no laws, no rights, not even the common sentiments and feeling of
men, he hopes your interest in them will be considerably lessened. He
would persuade you that their sufferings are much assuaged by their
being nothing new,--and that, having no right to property, to liberty,
to honor, or to life, they must be more pleased with the little that is
left to them than grieved for the much that has been ravished from them
by his cruelty and his avarice. This inference makes it very necessary
for me, before I proceed further, to make a few remarks upon this part
of the prisoner's conduct, which your Lordships must have already felt
with astonishment, perhaps with indignation. This man, who passed
twenty-five years in India, who was fourteen years at the head of his
government, master of all the offices, master of all the registers and
records, master of all the lawyers and priests of all this empire, from
the highest to the lowest, instead of producing to you the fruits of so
many years' local and official knowledge upon that subject, has called
out a long line of the rabble of travellers to inform you concerning the
objects of his own government. That his learned counsel should be
ignorant of those things is a matter of course. That, if left to
himself, the person who has produced all this stuff should, in pursuit
of his darling arbitrary power, wander without a guide, or with false
guides, is quite natural. But your Lordships must have heard with
astonishment, that, upon points of law relative to the tenure of lands,
instead of producing any law document or authority on the usages and
local customs of the country, he has referred to officers in the army,
colonels of artillery and engineers, to young gentlemen just come from
school, not above three or four years in the country. Good God! would
not one rather have expected to hear him put all these travellers to
shame by the authority of a man who had resided so long in the supreme
situation of government,--to set aside all these wild, loose, casual,
and silly observations of travellers and theorists? On the contrary, as
if he was ignorant of everything, as if he knew nothing of India, as if
he had dropped from the clouds, he cites the observations of every
stranger who had been hurried in a palanquin through the country,
capable or incapable of observation, to prove to you the nature of the
government, and of the power he had to exercise.
My Lords, the Commons of Great Britain are not disposed to resort to the
ridiculous relations of travellers, or to the wild systems which
ingenious men have thought proper to build on their authority. We will
take another mode. We will undertake to prove the direct contrary of his
assertions in every point and particular. We undertake to do this,
because your Lordships know, and because the world knows, that, if you
go into a country where you suppose man to be in a servile
state,--where, the despot excepted, there is no one person who can lift
up his head above another,--where all are a set of vile, miserable
slaves, prostrate and confounded in a common servitude, having no
descendible lands, no inheritance, nothing that makes man feel proud of
himself, or that gives him honor and distinction with others,--this
abject degradation will take from you that kind of sympathy which
naturally attaches you to men feeling like yourselves, to men who have
hereditary dignities to support, and lands of inheritance to maintain,
as you peers have; you will, I say, no longer have that feeling which
you ought to have for the sufferings of a people whom you suppose to be
habituated to their sufferings and familiar with degradation. This makes
it absolutely necessary for me to refute every one of these
misrepresentations; and whilst I am endeavoring to establish the rights
of these people, in order to show in what manner and degree they have
been violated, I trust that your Lordships will not think that the time
is lost: certainly I do not think that my labor will be misspent in
endeavoring to bring these matters fully before you.
In determining to treat this subject at length, I am also influenced by
a strong sense of the evils that have attended the propagation of these
wild, groundless, and pernicious opinions. A young man goes to India
before he knows much of his own country; but he cherishes in his breast,
as I hope every man will, a just and laudable partiality for the laws,
liberties, rights, and institutions of his own nation. We all do this;
and God forbid we should not prefer our own to every other country in
the world! but if we go to India with an idea of the mean, degraded
state of the people that we are to govern, and especially if we go with
these impressions at an immature age, we know, that, according to the
ordinary course of human nature, we shall not treat persons well whom we
have learnt to despise. We know that people whom we suppose to have
neither laws or rights will not be treated by us as a people who have
laws and rights. This error, therefore, for our sake, for your sake, for
the sake of the Indian public, and for the sake of all those who shall
hereafter go in any station to India, I think it necessary to disprove
in every point.
I mean to prove the direct contrary of everything that has been said on
this subject by the prisoner's counsel, or by himself. I mean to prove
that the people of India have laws, rights, and immunities; that they
have property, movable and immovable, descendible as well as occasional;
that they have property held for life, and that they have it as well
secured to them by the laws of their country as any property is secured
in this country; that they feel for honor, not only as much as your
Lordships can feel, but with a _more_ exquisite and poignant sense than
any people upon earth; and that, when punishments are inflicted, it is
not the lash they feel, but the disgrace: in short, I mean to prove that
every word which Montesquieu has taken from idle and inconsiderate
travellers is absolutely false.
The people of India are divided into three kinds: the original natives
of the country, commonly called Gentoos; the descendants of the Persians
and Arabians, who are Mahometans; and the descendants of the Moguls, who
originally had a religion of their own, but are now blended with the
other inhabitants.
The primeval law of that country is the Gentoo law; and I refer your
Lordships to Mr. Halhed's translation of that singular code,--a work
which I have read with all the care that such an extraordinary view of
human affairs and human constitutions deserves. I do not know whether
Mr. Halhed's compilation is in evidence before your Lordships, but I do
know that it is good authority on the Gentoo law. Mr. Hastings, who
instructed his counsel to assert that the people have "no rights, no
law," ought to be well acquainted with this work, because he claimed
for a while the glory of the compilation, although Nobkissin, as your
Lordships remember, was obliged to pay the expense. This book, a
compilation of probably the most ancient laws in the world, if we except
the Mosaic, has in it the duty of the magistrate and the duty of all
ranks of subjects most clearly and distinctly ascertained; and I will
give up the whole cause, if there is, from one end to the other of this
code, any sort of arbitrary power claimed or asserted on the part of the
magistrate, or any declaration that the people have no rights of
property. No: it asserts the direct contrary.
First, the people are divided into classes and ranks, with more accuracy
of distinction than is used in this country, or in any other country
under heaven. Every class is divided into families, some of whom are
more distinguished and more honorable than others; and they all have
rights, privileges, and immunities belonging to them. Even in cases of
conquest, no confiscation is to take place. A Brahmin's estate comes by
descent to him; it is forever descendible to his heirs, if he has heirs;
and if he has none, it belongs to his disciples, and those connected
with him in the Brahminical caste. There are other immunities declared
to belong to this caste, in direct contradiction to what has been
asserted by the prisoner. In no case shall a Brahmin suffer death; in no
case shall the property of a Brahmin, male or female, be confiscated for
crime, or escheat for want of heirs. The law then goes on to other
castes, and gives to each its property, and distinguishes them with
great accuracy of discrimination.
Mr. Hastings says that there is no inheritable property among them. Now
you have only to look at page 27, chapter the second, the title of
which, is, _Of the Division of Inheritable Property_. There, after going
through all the nicety of pedigree, it is declared, that, "when a
father, or grandfather, a great-grandfather, or any relations of that
nature, decease, or lose their caste, or renounce the world, or are
desirous to give up their property, their sons, grandsons,
great-grandsons, and other natural heirs, may divide and assume their
glebe-lands, orchards, jewels, corals, clothes, furniture, cattle, and
birds, and all the estate, real and personal." My Lords, this law
recognizes this kind of property; it regulates it with the nicest
accuracy of distinction; it settles the descent of it in every part and
circumstance. It nowhere asserts (but the direct contrary is positively
asserted) that the magistrate has any power whatever over property. It
states that it is the magistrate's duty to protect it; that he is bound
to govern by law; that he must have a council of Brahmins to assist him
in every material act that he does: in short, my Lords, there is not
even a trace of arbitrary power in the whole system.
My Lords, I will mention one article, to let you see, in a very few
words, that these Gentoos not only have an inheritance, but that the law
has established a right of _acquiring_ possession in the property of
another by prescription. The passage stands thus:--"If there be a person
who is not a minor," (a man ceases to be a minor at fifteen years of
age,) "nor impotent, nor diseased, nor an idiot, nor so lame as not to
have power to walk, nor blind, nor one who, on going before a
magistrate, is found incapable of distinguishing and attending to his
own concerns, and who has not given to another person power to employ
and to use his property,--if, in the face of any such person, another
man has applied to his own use, during the space of twenty years, the
glebe-land or houses or orchards of that person, without let or
molestation from him, from the twenty-first year the property becomes
invested in the person so applying such things to his own use; and any
claim of the first person above mentioned upon such glebe-[land or?]
houses or orchards shall by no means stand good: but if the person
before mentioned comes under any of the circumstances herein before
described, his claim in that case shall stand good." Here you see, my
Lords, that possession shall by prescription stand good against the
claims of all persons who are not disqualified from making their claims.
I might, if necessary, show your Lordships that the highest magistrate
is subject to the law; that there is a case in which he is finable; that
they have established rules of evidence and of pleading, and, in short,
all the rules which have been formed in other countries to prevent this
very arbitrary power. Notwithstanding all this, the prisoner at the bar,
and his counsel, have dared to assert, in this sacred temple of justice,
in the presence of this great assembly, of all the bishops, of all the
peers, and of all the judges of this land, that the people of India have
no laws whatever.
I do not mean to trouble your Lordships with more extracts from this
book. I recommend it to your Lordships' reading,--when you will find,
that, so far from the magistrate having any power either to imprison
arbitrarily or to fine arbitrarily, the rules of fines are laid down
with ten thousand times more exactness than with us. If you here find
that the magistrate has any power to punish the people with arbitrary
punishment, to seize their property, or to disfranchise them of any
rights or privileges, I will readily admit that Mr. Hastings has laid
down good, sound doctrine upon this subject. There is his own book, a
compilation of their laws, which has in it not only good and excellent
positive rules, but a system of as enlightened jurisprudence, with
regard to the body and substance of it, as perhaps any nation ever
possessed,--a system which must have been composed by men of highly
cultivated understandings.
As to the travellers that have been quoted, absurd as they are in the
ground of their argument, they are not less absurd in their reasonings.
For, having first laid it down that there is no property, and that the
government is the proprietor of everything, they argue, inferentially,
that they have no laws. But if ever there were a people that seem to be
protected with care and circumspection from all arbitrary power, both in
the executive and judicial department, these are the people that seem to
be so protected.
I could show your Lordships that they are so sensible of honor, that
fines are levied and punishment inflicted according to the rank of the
culprit, and that the very authority of the magistrate is dependent on
their rank. That the learned counsel should be ignorant of these things
is natural enough. They are concerned in the gainful part of their
profession. If they know the laws of their own country, which I dare say
they do, it is not to be expected that they should know the laws of any
other. But, my Lords, it is to be expected that the prisoner should know
the Gentoo laws: for he not only cheated Nobkissin of his money to get
these laws translated, but he took credit for the publication of the
work as an act of public spirit, after shifting the payment from himself
by fraud and peculation. All this has been proved by the testimonies of
Mr. Auriol and Mr. Halhed before your Lordships.
We do not bring forward this book as evidence of guilt or innocence, but
to show the laws and usages of the country, and to prove the prisoner's
knowledge of them.
From the Gentoo we will proceed to the Tartarian government of India, a
government established by conquest, and therefore not likely to be
distinguished by any marks of extraordinary mildness towards the
conquered. The book before me will prove to your Lordships that the head
of this government (who is falsely supposed to have a despotic
authority) is absolutely elected to his office. Tamerlane was elected;
and Genghis Khân particularly valued himself on improving the laws and
institutions of his own country. These laws we only have imperfectly in
this book; but we are told in it, and I believe the fact, that he
forbade, under pain of death, any prince or other person to presume to
cause himself to be proclaimed Great Khân or Emperor, without being
first duly elected by the princes lawfully assembled in general diet. He
then established the privileges and immunities granted to the
Tunkawns,--that is, to the nobility and gentry of the country,--and
afterwards published most severe ordinances against governors who failed
in doing their duty, but principally against those who commanded in far
distant provinces. This prince was in this case, what I hope your
Lordships will be, a very severe judge of the governors of countries
remote from the seat of the government.
My Lords, we have in this book sufficient proof that a Tartarian
sovereign could not obtain the recognition of ancient laws, or establish
new ones, without the consent of his parliament; that he could not
ascend the throne without being duly elected; and that, when so elected,
he was bound to preserve the great in all their immunities, and the
people in all their rights, liberties, privileges, and properties. We
find these great princes restrained by laws, and even making wise and
salutary regulations for the countries which they conquered. We find
Genghis Khân establishing one of his sons in a particular
office,--namely, conservator of those laws; and he has ordered that they
should not only be observed in his time, but by all posterity; and
accordingly they are venerated at this time in Asia. If, then, this very
Genghis Khân, if Tamerlane, did not assume arbitrary power, what are you
to think of this man, so bloated with corruption, so bloated with the
insolence of unmerited power, declaring that the people of India have no
rights, no property, no laws,--that he could not be bound even by an
English act of Parliament,--that he was an arbitrary sovereign in India,
and could exact what penalties he pleased from the people, at the
expense of liberty, property, and even life itself? Compare this man,
this compound of pride and presumption, with Genghis Khân, whose
conquests were more considerable than Alexander's, and yet who made the
laws the rule of his conduct; compare him with Tamerlane, whose
Institutes I have before me. I wish to save your Lordships' time, or I
could show you in the life of this prince, that he, violent as his
conquests were, bloody as all conquests are, ferocious as a Mahometan
making his crusades for the propagation of his religion, he yet knew how
to govern his unjust acquisitions with equity and moderation. If any man
could be entitled to claim arbitrary power, if such a claim could be
justified by extent of conquest, by splendid personal qualities, by
great learning and eloquence, Tamerlane was the man who could have made
and justified the claim. This prince gave up all his time not employed
in conquests to the conversation of learned men. He gave himself to all
studies that might accomplish a great man. Such a man, I say, might, if
any may, claim arbitrary power. But the very things that made him great
made him sensible that he was but a man. Even in the midst of all his
conquests, his tone was a tone of humility; he spoke of laws as every
man must who knows what laws are; and though he was proud, ferocious,
and violent in the achievement of his conquests, I will venture to say
no prince ever established institutes of civil government more honorable
to himself than the Institutes of Timour. I shall be content to be
brought to shame before your Lordships, if the prisoner at your bar can
show me one passage where the assumption of arbitrary power is even
hinted at by this great conqueror. He declares that the nobility of
every country shall be considered as his brethren, that the people shall
be acknowledged as his children, and that the learned and the dervishes
shall be particularly protected. But, my Lords, what he particularly
valued himself upon I shall give your Lordships in his own words:--"I
delivered the oppressed from the hand of the oppressor; and after proof
of the oppression, whether on the property or the person, the decision
which I passed between them was agreeable to the sacred law; and I did
not cause any one person to suffer for the guilt of another."[95]
My Lords, I have only further to inform your Lordships that these
Institutes of Timour ought to be very well known to Mr. Hastings. He
ought to have known that this prince never claimed arbitrary power; that
the principles he adopted were to govern by law, to repress the
oppressions of his inferior governors, to recognize in the nobility the
respect due to their rank, and in the people the protection to which
they were by law entitled. This book was published by Major Davy, and
revised by Mr. White. The Major was an excellent Orientalist; he was
secretary to Mr. Hastings, to whom, I believe, he dedicated this book. I
have inquired of persons the most conversant with the Arabic and
Oriental languages, and they are clearly of opinion that there is
internal evidence to prove it of the age of Tamerlane; and he must be
the most miserable of critics, who, reading this work with attention,
does not see, that, if it was not written by this very great monarch
himself, it was at least written by some person in his court and under
his immediate inspection. Whether, therefore, this work be the
composition of Tamerlane, or whether it was written by some persons of
learning near him, through whom he meant to give the world a just idea
of his manners, maxims, and government, it is certainly as good
authority as Mr. Hastings's _Defence_, which he has acknowledged to have
been written by other people.
From the Tartarian I shall now proceed to the later Mahometan conquerors
of Hindostan: for it is fit that I should show your Lordships the
wickedness of pretending that the people of India have no laws or
rights. A great proportion of the people are Mahometans; and Mahometans
are so far from having no laws or rights, that, when you name a
Mahometan, you name a man governed by law and entitled to protection.
Mr. Hastings caused to be published, and I am obliged to him for it, a
book called "The Hedaya": it is true that he has himself taken credit
for the work, and robbed Nobkissin of the money to pay for it; but the
value of a book is not lessened because a man stole it. Will you
believe, my Lords, that a people having no laws, no rights, no property,
no honor, would be at the trouble of having so many writers on
jurisprudence? And yet there are, I am sure, at least a thousand eminent
Mahometan writers upon law, who have written far more voluminous works
than are known in the Common Law of England, and I verily believe more
voluminous than the writings of the Civilians themselves. That this
should be done by a people who have no property is so perfectly
ridiculous as scarcely to require refutation; but I shall endeavor to
refute it, and without troubling you a great deal.
First, then, I am to tell you that the Mahometans are a people amongst
whom the science of jurisprudence is much studied and cultivated; that
they distinguish it into the law of the _Koran_ and its authorized
commentaries,--into the _Fetwah_, which is the judicial judgments and
reports of adjudged cases,--into the _Canon_, which is the regulations
made by the emperor for the sovereign authority in the government of
their dominions,--and, lastly, into the _Rawaj-ul-Mulk_, or custom and
usage, the common law of the country, which prevails independent of any
of the former.
In regard to punishments being arbitrary, I will, with your Lordships'
permission, read a passage which will show you that the magistrate is a
responsible person. "If a supreme ruler, such as the Caliph for the time
being, commit any offence punishable by law, such as whoredom, theft, or
drunkenness, he is not subject to any punishment; but yet if he commit
murder, he is subject to the law of retaliation, and he is also
accountable in matters of property: because _punishment_ is a right of
God, the infliction of which is committed to the Caliph, or other
supreme magistrate, and to none else; and he cannot inflict punishment
upon himself, as in this there is no advantage, because the good
proposed in punishment is that it may operate as a warning to deter
mankind from sin, and this is not obtained by a person's inflicting
punishment upon himself, contrary to the rights of the _individual_,
such as the laws of _retaliation_ and of _property_, the penalties of
which may be exacted of the Caliph, as the claimant of right may obtain
satisfaction, either by the Caliph impowering him to exact his right
from himself, or by the claimant appealing for assistance to the
collective body of Mussulmans."[96]
Here your Lordships see that the Caliph, who is a magistrate of the
highest authority which can exist among the Mahometans, where property
or life is concerned has no arbitrary power, but is responsible just as
much as any other man.
I am now to inform your Lordships that the sovereign can raise no taxes.
The imposing of a tribute upon a Mussulman, without his previous
consent, is impracticable. And so far from all property belonging to the
sovereign, the public treasure does not belong to him. It is declared to
be the common property of all Mahometans. This doctrine is laid down in
many places, but particularly in the 95th page of the second volume of
Hamilton's Hedaya.
Mr. Hastings has told you what a sovereign is, and what sovereignty is,
all over India; and I wish your Lordships to pay particular attention to
this part of his defence, and to compare Mr. Hastings's idea of
sovereignty with the declaration of the Mahometan law. The tenth chapter
of these laws treats of rebellion, which is defined an act of warfare
against the sovereign. You are there told who the sovereign is, and how
many kinds of rebels there are. The author then proceeds to say,--"The
word _bâghee_ (rebellion), in its literal sense, means prevarication,
also, injustice and tyranny; in the language of the law it is
particularly applied to injustice, namely, withdrawing from obedience to
the rightful Imaum (as appears in the _Fattahal-Kadeen_). By the
rightful Imaum is understood a person in whom all the qualities
essential to magistracy are united, such as Islamism, freedom, sanity of
intellect, and maturity of age,--and who has been elected into his
office by any tribe of Mussulmans, with their general consent; whose
view and intention is the advancement of the true religion and the
strengthening of the Mussulmans, and under whom the Mussulmans enjoy
security in person and property; one who levies tithe and tribute
according to law; who out of the public treasury pays what is due to
learned men, preachers, kâzees, muftis, philosophers, public teachers,
and so forth; and who is just in all his dealings with Mussulmans: for
whoever does not answer this description is not the right Imaum; whence
it is not incumbent to support such a one; but rather it is incumbent to
oppose him and make war upon him, until such time as he either adopt a
proper mode of conduct or be slain."[97]
My Lords, is this a magistrate of the same description as the sovereign
delineated by Mr. Hastings? This man must be elected by the general
consent of Mussulmans; he must be a protector of the person and property
of his subjects; a right of resistance is directly established by law
against him, and even the duty of resistance is insisted upon. Am I, in
praising this Mahometan law, applauding the principle of elective
sovereignty? No, my Lords, I know the mischiefs which have attended it;
I know that it has shaken the thrones of most of the sovereigns of the
Mussulman religion; but I produce the law as the clearest proof that
such a sovereign cannot be supposed to have an arbitrary power over the
property and persons of those who elect him, and who have an
acknowledged right to resist and dethrone him, if he does not afford
them protection.
I have now gone through what I undertook to prove,--that Mr. Hastings,
with all his Indian Council, who have made up this volume of arbitrary
power, are not supported by the laws of the Moguls, by the laws of the
Gentoos, by the Mahometan laws, or by any law, custom, or usage which
has ever been recognized as legal and valid.
But, my Lords, the prisoner defends himself by example; and, good God!
what are the examples which he has chosen? Not the local usages and
constitutions of Oude or of any other province; not the general practice
of a respectable emperor, like Akbar, which, if it would not fatigue
your Lordships, I could show to be the very reverse of this man's. No,
my Lords, the prisoner, his learned counsel here, and his unlearned
Cabinet Council, who wrote this defence, have ransacked the tales of
travellers for examples, and have selected materials from that mass of
loose remarks and crude conceptions, to prove that the natives of India
have neither rights, laws, orders, or distinction.
I shall now proceed to show your Lordships that the people of India have
a keen sense and feeling of disgrace and dishonor. In proof of this I
appeal to well-known facts. There have been women tried in India for
offences, and acquitted, who would not survive the disgrace even of
acquittal. There have been Hindoo soldiers, condemned at a
court-martial, who have desired to be blown from the mouth of a cannon,
and have claimed rank and precedence at the last moment of their
existence. And yet these people are said to have no sense of dishonor!
Good God! that we should be under the necessity of proving, in this
place, all these things, and of disproving that all India was given in
slavery to this man!
But, my Lords, they will show you, they say, that Genghis Khân, Kouli
Khân, and Tamerlane destroyed ten thousand times more people in battle
than this man did. Good God! have they run mad? Have they lost their
senses in their guilt? Did they ever expect that we meant to compare
this man to Tamerlane, Genghis Khân, or Kouli Khân?--to compare a clerk
at a bureau, to compare a fraudulent bullock-contractor, (for we could
show that his first elementary malversations were in carrying on
fraudulent bullock-contracts; which contracts were taken from him with
shame and disgrace, and restored with greater shame and disgrace,) to
compare him with the conquerors of the world? We never said he was a
tiger and a lion: no, we have said he was a weasel and a rat. We have
said that he has desolated countries by the same means that plagues of
his description have produced similar desolations. We have said that he,
a fraudulent bullock-contractor, exalted to great and unmerited powers,
can do more mischief than even all the tigers and lions in the world. We
know that a swarm of locusts, although individually despicable, can
render a country more desolate than Genghis Khân or Tamerlane. When God
Almighty chose to humble the pride and presumption of Pharaoh, and to
bring him to shame, He did not effect His purpose with tigers and lions;
but He sent lice, mice, frogs, and everything loathsome and
contemptible, to pollute and destroy the country. Think of this, my
Lords, and of your listening here to these people's long account of
Tamerlane's camp of two hundred thousand persons, and of his building a
pyramid at Bagdad with the heads of ninety thousand of his prisoners!
We have not accused Mr. Hastings of being a great general, and abusing
his military powers: we know that he was nothing, at the best, but a
creature of the bureau, raised by peculiar circumstances to the
possession of a power by which incredible mischief might be done. We
have not accused him of the vices of conquerors: when we see him
signalized by any conquests, we may then make such an accusation; at
present we say that he has been trusted with power much beyond his
deserts, and that trust he has grossly abused.--But to proceed.
His counsel, according to their usual audacious manner, (I suppose they
imagine that they are counsel for Tamerlane, or for Genghis Khân,) have
thought proper to accuse the Managers for the Commons of wandering
[wantoning?] in all the fabulous regions of Indian mythology. My Lords,
the Managers are sensible of the dignity of their place; they have never
offered anything to you without reason. We are not persons of an age, of
a disposition, of a character, representative or natural, to _wanton_,
as these counsel call it,--that is, to invent fables concerning Indian
antiquity. That they are not ashamed of making this charge I do not
wonder. But we are not to be thus diverted from our course.
I have already stated to your Lordships a material circumstance of this
case, which I hope will never be lost sight of,--namely, the different
situation in which India stood under the government of its native
princes and its own original laws, and even under the _dominion_ of
Mahometan conquerors, from that in which it has stood under the
government of a series of tyrants, foreign and domestic, particularly of
Mr. Hastings, by whom it has latterly been oppressed and desolated. One
of the books which I have quoted was written by Mr. Halhed; and I shall
not be accused of wantoning in fabulous antiquity, when I refer to
another living author, who wrote from what he saw and what he well knew.
This author says,--"In truth, it would be almost cruelty to molest these
happy people" (speaking of the inhabitants of one of the provinces near
Calcutta); "for in this district are the only vestiges of the beauty,
purity, piety, regularity, equity, and strictness of the ancient
Hindostan government: here the property as well as the liberty of the
people is inviolate." My Lords, I do not refer you to this writer
because I think it necessary to our justification, nor from any fear
that your Lordships will not do us the justice to believe that we have
good authority for the facts which we state, and do not (as persons with
their licentious tongues dare to say) wanton in fabulous antiquity. I
quote the works of this author, because his observations and opinions
could not be unknown to Mr. Hastings, whose associate he was in some
acts, and whose adviser he appears to have been in that dreadful
transaction, the deposition of Cossim Ali Khân. This writer was
connected with the prisoner at your bar in bribery, and has charged him
with detaining his bribe. To this Mr. Hastings has answered, that he had
paid him long ago. How they have settled that corrupt transaction I know
not. I merely state all this to prove that we have not dealt in fabulous
history, and that, if anybody has dealt in falsehood, it is Mr.
Hastings's companion and associate in guilt, who must have known the
country, and who, however faulty he was in other respects, had in this
case no interest whatever in misrepresentation.
I might refer your Lordships, if it were necessary, to Scrafton's
account of that ancient government, in order to prove to you the happy
comparative state of that country, even under its former usurpers. Our
design, my Lords, in making such references, is not merely to disprove
the prisoner's defence, but to vindicate the rights and privileges of
the people of India. We wish to reinstate them in your sympathy. We
wish you to respect a people as respectable as yourselves,--a people who
know as well as you what is rank, what is law, what is property,--a
people who know how to feel disgrace, who know what equity, what reason,
what proportion in punishments, what security of property is, just as
well as any of your Lordships; for these are things which are secured to
them by laws, by religion, by declarations of all their sovereigns. And
what, my Lords, is opposed to all this? The practice of tyrants and
usurpers, which Mr. Hastings takes for his rule and guidance. He
endeavors to find deviations from legal government, and then instructs
his counsel to say that I have asserted there is no such thing as
arbitrary power in the East. Good God! if there was no such thing in any
other part of the world, Mr. Hastings's conduct might have convinced me
of the existence of arbitrary power, and have taught me much of its
mischief.
But, my Lords, we all know that there has been arbitrary power in
India,--that tyrants have usurped it,--and that, in some instances,
princes otherwise meritorious have violated the liberties of the people,
and have been lawfully deposed for such violation. I do not deny that
there are robberies on Hounslow Heath,--that there are such things as
forgeries, burglaries, and murders; but I say that these acts are
against law, and that whoever commit them commit illegal acts. When a
man is to defend himself against a charge of crime, it is not instances
of similar violation of law that is to be the standard of his defence. A
man may as well say, "I robbed upon Hounslow Heath, but hundreds robbed
there before me": to which I answer, "The law has forbidden you to rob
there; and I will hang you for having violated the law, notwithstanding
the long list of similar violations which you have produced as
precedents." No doubt princes have violated the law of this country:
they have suffered for it. Nobles have violated the law: their
privileges have not protected them from punishment. Common people have
violated the law: they have been hanged for it. I know no human being
exempt from the law. The law is the security of the people of England;
it is the security of the people of India; it is the security of every
person that is governed, and of every person that governs. There is but
one law for all, namely, that law which governs all law, the law of our
Creator, the law of humanity, justice, equity,--the Law of Nature and of
Nations. So far as any laws fortify this primeval law, and give it more
precision, more energy, more effect by their declarations, such laws
enter into the sanctuary, and participate in the sacredness of its
character. But the man who quotes as precedents the abuses of tyrants
and robbers pollutes the very fountain of justice, destroys the
foundations of all law, and thereby removes the only safeguard against
evil men, whether governors or governed,--the guard which prevents
governors from becoming tyrants, and the governed from becoming rebels.
* * * * *
I hope your Lordships will not think that I have unnecessarily occupied
your time in disproving the plea of arbitrary power, which has been
brought forward at our bar, has been repeated at your Lordships' bar,
and has been put upon the records of both Houses. I hope your Lordships
will not think that such monstrous doctrine should be passed over,
without all possible pains being taken to demonstrate its falsehood and
to reprobate its tendency. I have not spared myself in exposing the
principles avowed by the prisoner. At another time I will endeavor to
show you the manner in which he acted upon these principles. I cannot
command strength to proceed further at present; and you, my Lords,
cannot give me greater bodily strength than I have.
FOOTNOTES:
[95] Institutes of Timour, p. 165.
[96] Hedaya, Vol. II. p. 34.
[97] Hedaya, Vol. II. pp. 247, 248.
SPEECH
IN
GENERAL REPLY.
SECOND DAY: FRIDAY, MAY 30, 1794.
My lords,--On the last day of the sitting of this court, when I had the
honor of appearing before you by the order of my fellow Managers, I
stated to you their observations and my own upon two great points: one
the demeanor of the prisoner at the bar during his trial, and the other
the principles of his defence. I compared that demeanor with the
behavior of some of the greatest men in this kingdom, who have, on
account of their offences, been brought to your bar, and who have seldom
escaped your Lordships' justice. I put the decency, humility, and
propriety of the most distinguished men's behavior in contrast with the
shameless effrontery of this prisoner, who has presumptuously made a
recriminatory charge against the House of Commons, and answered their
impeachment by a counter impeachment, explicitly accusing them of
malice, oppression, and the blackest ingratitude.
My Lords, I next stated that this recriminatory charge consisted of two
distinct parts,--injustice and delay. To the injustice we are to answer
by the nature and proof of the charges which we have brought before you;
and to the delay, my Lords, we have answered in another place. Into one
of the consequences of the delay, the ruinous expense which the
prisoner complains of, we have desired your Lordships to make an
inquiry, and have referred you to facts and witnesses which will remove
this part of the charge.
With regard to ingratitude, there will be a proper time for
animadversion on this charge. For in considering the merits that are
intended to be set off against his crimes, we shall have to examine into
the nature of those merits, and to ascertain how far they are to
operate, either as the prisoner designs they shall operate in his favor,
as presumptive proofs that a man of such merits could not be guilty of
such crimes, or as a sort of set-off to be pleaded in mitigation of his
offences. In both of these lights we shall consider his services, and in
this consideration we shall determine the justice of his charge of
ingratitude.
My Lords, we have brought the demeanor of the prisoner before you for
another reason. We are desirous that your Lordships may be enabled to
estimate, from the proud presumption and audacity of the criminal at
your bar, when he stands before the most awful tribunal in the world,
accused by a body representing no less than the sacred voice of his
country, what he must have been when placed in the seat of pride and
power. What must have been the insolence of that man towards the natives
of India, who, when called here to answer for enormous crimes, presumes
to behave, not with the firmness of innocence, but with the audacity and
hardness of guilt!
It may be necessary that I should recall to your Lordships' recollection
the principles of the accusation and of the defence. Your Lordships will
bear in mind that the matters of fact are all either settled by
confession or conviction, and that the question now before you is no
longer an issue of fact, but an issue of law. The question is, what
degree of merit or demerit you are to assign by law to actions which
have been laid before you, and their truth acknowledged.
The principle being established that you are to decide upon an issue at
law, we examined by what law the prisoner ought to be tried; and we
preferred a claim which we do now solemnly prefer, and which we trust
your Lordships will concur with us in a laudable emulation to
establish,--a claim founded upon the great truths, that all power is
limited by law, and ought to be guided by discretion, and not by
arbitrary will,--that all discretion must be referred to the
conservation and benefit of those over whom power is exercised, and
therefore must be guided by rules of sound political morality.
We next contended, that, wherever existing laws were applicable, the
prisoner at your bar was bound by the laws and statutes of this kingdom,
as a British subject; and that, whenever he exercised authority in the
name of the Company, or in the name of his Majesty, or under any other
name, he was bound by the laws and statutes of this kingdom, both in
letter and spirit, so far as they were applicable to him and to his
case; and above all, that he was bound by the act to which he owed his
appointment, in all transactions with foreign powers, to act according
to the known recognized rules of the Law of Nations, whether these
powers were really or nominally sovereign, whether they were dependent
or independent.
The next point which we established, and which we now call to your
Lordships' recollection, is, that he was bound to proceed according to
the laws, rights, laudable customs, privileges, and franchises of the
country that he governed; and we contended that to such laws, rights,
privileges, and franchises the people of the country had a clear and
just claim.
Having established these points as the basis of Mr. Hastings's general
power, we contended that he was obliged by the nature of his relation,
as a servant to the Company, to be obedient to their orders at all
times, and particularly where he had entered into special covenants
regarding special articles of obedience.
These are the principles by which we have examined the conduct of this
man, and upon which we have brought him to your Lordships' bar for
judgment. This is our table of the law. Your Lordships shall now be
shown the table by which he claims to be judged. But I will first beg
your Lordships to take notice of the utter contempt with which he treats
all our acts of Parliament.
Speaking of the absolute sovereignty which he would have you believe is
exercised by the princes of India, he says, "The sovereignty which they
assumed it fell to my lot, very unexpectedly, to exert; and whether or
not such power, or powers of that nature, were delegated to me by any
provisions of any act of Parliament I confess myself too little of a
lawyer to pronounce," and so on. This is the manner in which he treats
an act of Parliament! In the place of acts of Parliament he substitutes
his own arbitrary will. This he contends is the sole law of the country
he governed, as laid down in what he calls the arbitrary Institutes of
Genghis Khân and Tamerlane. This arbitrary will he claims, to the
exclusion of the Gentoo law, the Mahometan law, and the law of his own
country. He claims the right of making his own will the sole rule of his
government, and justifies the exercise of this power by the examples of
Aliverdy Khân, Cossim Ali Khân, Sujah Dowlah Khân, and all those Khâns
who have rebelled against their masters, and desolated the countries
subjected to their rule. This, my Lords, is the law which he has laid
down for himself, and these are the examples which he has expressly told
the House of Commons he is resolved to follow. These examples, my Lords,
and the principles with which they are connected, without any softening
or mitigation, he has prescribed to you as the rule by which his conduct
is to be judged.
Another principle of the prisoner is, that, whenever the Company's
affairs are in distress, even when that distress proceeds from his own
prodigality, mismanagement, or corruption, he has a right to take for
the Company's benefit privately in his own name, with the future
application of it to their use reserved in his own breast, every kind of
bribe or corrupt present whatever.
I have now restated to your Lordships the maxims by which the prisoner
persists in defending himself, and the principles upon which we claim to
have him judged. The issue before your Lordships is a hundred times more
important than the cause itself, for it is to determine by what law or
maxims of law the conduct of governors is to be judged.
On one side, your Lordships have the prisoner declaring that the people
have no laws, no rights, no usages, no distinctions of rank, no sense of
honor, no property,--in short, that they are nothing but a herd of
slaves, to be governed by the arbitrary will of a master. On the other
side, we assert that the direct contrary of this is true. And to prove
our assertion we have referred you to the Institutes of Genghis Khân and
of Tamerlane; we have referred you to the Mahometan law, which is
binding upon all, from the crowned head to the meanest subject,--a law
interwoven with a system of the wisest, the most learned, and most
enlightened jurisprudence that perhaps ever existed in the world. We
have shown you, that, if these parties are to be compared together, it
is not the rights of the people which are nothing, but rather the rights
of the sovereign which are so. The rights of the people are everything,
as they ought to be, in the true and natural order of things. God forbid
that these maxims should trench upon sovereignty, and its true, just,
and lawful prerogative!--on the contrary, they ought to support and
establish them. The sovereign's rights are undoubtedly sacred rights,
and ought to be so held in every country in the world, because exercised
for the benefit of the people, and in subordination to that great end
for which alone God has vested power in any man or any set of men. This
is the law that we insist upon, and these are the principles upon which
your Lordships are to try the prisoner at your bar.
Let me remind your Lordships that these people lived under the laws to
which I have referred you, and that these laws were formed whilst we, I
may say, were in the forest, certainly before we knew what technical
jurisprudence was. These laws are allowed to be the basis and substratum
of the manners, customs, and opinions of the people of India; and we
contend that Mr. Hastings is bound to know them and to act by them; and
I shall prove that the very condition upon which he received power in
India was to protect the people in their laws and known rights. But
whether Mr. Hastings did know these laws, or whether, content with
credit gained by as base a fraud as was ever practised, he did not read
the books which Nobkissin paid for, we take the benefit of them: we know
and speak after knowledge of them. And although I believe his Council
have never read them, I should be sorry to stand in this place, if there
was one word and tittle in these books that I had not read over.
We therefore come here and declare to you that he is not borne out by
these Institutes, either in their general spirit or in any particular
passage to which he has had the impudence to appeal, in the assumption
of the arbitrary power which he has exercised. We claim, that, as our
own government and every person exercising authority in Great Britain is
bound by the laws of Great Britain, so every person exercising authority
in another country shall be subject to the laws of that country; since
otherwise they break the very covenant by which we hold our power there.
Even if these Institutes had been arbitrary, which they are not, they
might have been excused as the acts of conquerors. But, my Lords, he is
no conqueror, nor anything but what you see him,--a bad scribbler of
absurd papers, in which he can put no two sentences together without
contradiction. We know him in no other character than that of having
been a bullock-contractor for some years, of having acted fraudulently
in that capacity, and afterwards giving fraudulent contracts to others;
and yet I will maintain that the first conquerors of the world would
have been base and abandoned, if they had assumed such a right as he
dares to claim. It is the glory of all such great men to have for their
motto, _Parcere subjectis et debellare superbos_. These were men that
said they would recompense the countries which they had obtained through
torrents of blood, through carnage and violence, by the justice of their
institutions, the mildness of their laws, and the equity of their
government. Even if these conquerors had promulgated arbitrary
institutes instead of disclaiming them in every point, you, my Lords,
would never suffer such principles of defence to be urged here; still
less will you suffer the examples of men acting by violence, of men
acting by wrong, the example of a man who has become a rebel to his
sovereign in order that he should become the tyrant of his people, to be
examples for a British governor, or for any governor. We here
confidently protest against this mode of justification, and we maintain
that his pretending to follow these examples is in itself a crime. The
prisoner has ransacked all Asia for principles of despotism; he has
ransacked all the bad and corrupted part of it for tyrannical examples
to justify himself: and certainly in no other way can he be justified.
Having established the falsehood of the first principle of the
prisoner's defence, that sovereignty, wherever it exists in India,
implies in its nature and essence a power of exacting anything from the
subject, and disposing of his person and property, we now come to his
second assertion, that he was the true, full, and perfect representative
of that sovereignty in India.
In opposition to this assertion we first do positively deny that he or
the Company are the perfect representative of any sovereign power
whatever. They have certain rights by their charter, and by acts of
Parliament, but they have no other. They have their legal rights only,
and these do not imply any such thing as sovereign power. The
sovereignty of Great Britain is in the King; he is the sovereign of the
Lords and the sovereign of the Commons, individually and collectively;
and as he has his prerogative established by law, he must exercise it,
and all persons claiming and deriving under him, whether by act of
Parliament, whether by charter of the Crown, or by any other mode
whatever, all are alike bound by law, and responsible to it. No one can
assume or receive any power of sovereignty, because the sovereignty is
in the Crown, and cannot be delegated away from the Crown; no such
delegation ever took place, or ever was intended, as any one may see in
the act by which Mr. Hastings was nominated Governor. He cannot,
therefore, exercise that high supreme sovereignty which is vested by the
law, with the consent of both Houses of Parliament, in the King, and in
the King only. It is a violent, rebellious assumption of power, when Mr.
Hastings pretends fully, perfectly, and entirely to represent the
sovereign of this country, and to exercise legislative, executive, and
judicial authority, with as large and broad a sway as his Majesty,
acting with the consent of the two Houses of Parliament, and agreeably
to the laws of this kingdom. I say, my Lords, this is a traitorous and
rebellious assumption, which he has no right to make, and which we
charge against him, and therefore it cannot be urged in justification of
his conduct in any respect.
He next alleges, with reference to one particular case, that he received
this sovereignty from the Vizier Sujah Dowlah, who he pretends was
sovereign, with an unlimited power over the life, goods, and property of
Cheyt Sing. This we positively deny. Whatever power the supreme
sovereign of the empire had, we deny that it was delegated to Sujah
Dowlah. He never was in possession of it. He was a vizier of the empire;
he had a grant of certain lands for the support of that dignity: and we
refer you to the Institutes of Timour, to the Institutes of Akbar, to
the institutes of the Mahometan law, for the powers of delegated
governors and viceroys. You will find that there is not a trace of
sovereignty in them, but that they are, to all intents and purposes,
mere subjects; and consequently, as Sujah Dowlah had not these powers,
he could not transfer them to the India Company. His master, the Mogul
emperor, had them not. I defy any man to show an instance of that
emperor's claiming any such thing as arbitrary power; much less can it
be claimed by a rebellious viceroy who had broken loose from his
sovereign's authority, just as this man broke loose from the authority
of Parliament. The one had not a right to give, nor the other to receive
such powers. But whatever rights were vested in the Mogul, they cannot
belong either to Sujah Dowlah, to Mr. Hastings, or to the Company. These
latter are expressly bound by their compact to take care of the subjects
of the empire, and to govern them according to law, reason, and equity;
and when they do otherwise, they are guilty of tyranny, of a violation
of the rights of the people, and of rebellion against their sovereign.
We have taken these pains to ascertain and fix principles, because your
Lordships are not called upon to judge of facts. A jury may find facts,
but no jury can form a judgment of law; it is an application of the law
to the fact that makes the act criminal or laudable. You must find a
fixed standard of some kind or other; for if there is no standard but
the immediate momentary purpose of the day, guided and governed by the
man who uses it, fixed not only for the disposition of all the wealth
and strength of the state, but for the life, fortune, and property of
every individual, your Lordships are left without a principle to direct
your judgment. This high court, this supreme court of appeal from all
the courts of the kingdom, this highest court of criminal jurisdiction,
exercised upon the requisition of the House of Commons, if left without
a rule, would be as lawless as the wild savage, and as unprincipled as
the prisoner that stands at your bar. Our whole issue is upon
principles, and what I shall say to you will be in perpetual reference
to them; because it is better to have no principles at all than to have
false principles of government and of morality. Leave a man to his
passions, and you leave a wild beast to a savage and capricious nature.
A wild beast, indeed, when its stomach is full, will caress you, and may
lick your hands; in like manner, when a tyrant is pleased or his passion
satiated, you may have a happy and serene day under an arbitrary
government. But when the principle founded on solid reason, which ought
to restrain passion, is perverted from its proper end, the false
principle will be substituted for it, and then man becomes ten times
worse than a wild beast. The evil principle, grown solid and perennial,
goads him on and takes entire possession of his mind; and then perhaps
the best refuge that you can have from that diabolical principle is in
the natural wild passions and unbridled appetites of mankind. This is a
dreadful state of things; and therefore we have thought it necessary to
say a great deal upon his principles.
* * * * *
My Lords, we come next to apply these principles to facts which cannot
otherwise be judged, as we have contended and do now contend. I will not
go over facts which have been opened to you by my fellow Managers: if I
did so, I should appear to have a distrust, which I am sure no other man
has, of the greatest abilities displayed in the greatest of all causes.
I should be guilty of a presumption which I hope I shall not dream of,
but leave to those who exercise arbitrary power, in supposing that I
could go over the ground which my fellow Managers have once trodden, and
make anything more clear and forcible than they have done. In my humble
opinion, human ability cannot go farther than they have gone; and if I
ever allude to anything which they have already touched, it will be to
show it in another light,--to mark more particularly its departure from
the principles upon which we contend you ought to judge, or to supply
those parts which through bodily infirmity, and I am sure nothing else,
one of my excellent fellow Managers has left untouched. I am here
alluding to the case of Cheyt Sing.
My honorable fellow Manager, Mr. Grey, has stated to you all the
circumstances requisite to prove two things: first, that the demands
made by Mr. Hastings upon Cheyt Sing were contrary to fundamental
treaties between the Company and that Rajah; and next, that they were
the result and effect of private malice and corruption. This having
been stated and proved to you, I shall take up the subject where it was
left.
My Lords, in the first place, I have to remark to you, that the whole of
the charge originally brought by Mr. Hastings against Cheyt Sing, in
justification of his wicked and tyrannical proceedings, is, that he had
been dilatory, evasive, shuffling, and unwilling to pay that which,
however unwilling, evasive, and shuffling, he did pay; and that, with
regard to the business of furnishing cavalry, the Rajah has asserted,
and his assertion has not been denied, that, when he was desired by the
Council to furnish these troopers, the purpose for which this
application was made was not mentioned or alluded to, nor was there any
place of muster pointed out. We therefore contended, that the demand was
not made for the service of the state, but for the oppression of the
individual that suffered by it.
But admitting the Rajah to have been guilty of delay and unwillingness,
what is the nature of the offence? If you strip it of the epithets by
which it has been disguised, it merely amounts to an unwillingness in
the Rajah to pay more than the sums stipulated by the mutual agreement
existing between him and the Company. This is the whole of it, the whole
front and head of the offence; and for this offence, such as it is, and
admitting that he could be legally fined for it, he was subjected to the
secret punishment of giving a bribe to Mr. Hastings, by which he was to
buy off the fine, and which was consequently a commutation for it.
That your Lordships may be enabled to judge more fully of the nature of
this offence, let us see in what relation Cheyt Sing stood with the
Company. He was, my Lords, a person clothed with every one of the
attributes of sovereignty, under a direct stipulation that the Company
should not interfere in his internal government. The military and civil
authority, the power of life and death, the whole revenue, and the whole
administration of the law, rested in him. Such was the sovereignty he
possessed within Benares: but he was a subordinate sovereign dependent
upon a superior, according to the tenor of his compact, expressed or
implied. Now, having contended, as we still contend, that the Law of
Nations is the law of India as well as of Europe, because it is the law
of reason and the law of Nature, drawn from the pure sources of
morality, of public good, and of natural equity, and recognized and
digested into order by the labor of learned men, I will refer your
Lordships to Vattel, Book I. Cap. 16, where he treats of the breach of
such agreements, by the protector refusing to give protection, or the
protected refusing to perform his part of the engagement. My design in
referring you to this author is to prove that Cheyt Sing, so far from
being blamable in raising objections to the unauthorized demand made
upon him by Mr. Hastings, was absolutely bound to do so; nor could he
have done otherwise, without hazarding the whole benefit of the
agreement upon which his subjection and protection were founded. The law
is the same with respect to both contracting parties: if the protected
or protector does not fulfil with fidelity _each his separate
stipulation_, the protected may resist the unauthorized demand of the
protector, or the protector is discharged from his engagement; he may
refuse protection, and declare the treaty broken.
We contend in favor of Cheyt Sing, in support of the principles of
natural equity, and of the Law of Nations, which is the birthright of us
all,--we contend, I say, that Cheyt Sing would have established, in the
opinions of the best writers on the Law of Nations, a precedent against
himself for any future violation of the engagement, if he submitted to
any new demand, without what our laws call a continual claim or
perpetual remonstrance against the imposition. Instead, therefore, of
doing that which was criminal, he did that which his safety and his duty
bound him to do; and for doing this he was considered by Mr. Hastings as
being guilty of a great crime. In a paper which was published by the
prisoner in justification of this act, he considers the Rajah to have
been guilty of rebellious intentions; and he represents these acts of
contumacy, as he calls them, not as proofs of contumacy merely, but as
proofs of a settled design to rebel, and to throw off the authority of
that nation by which he was protected. This belief he declares on oath
to be the ground of his conduct towards Cheyt Sing.
Now, my Lords, we do contend, that, if any subject, under any name, or
of any description, be not engaged in public, open rebellion, but
continues to acknowledge the authority of his sovereign, and, if
tributary, to pay tribute conformably to agreement, such a subject, in
case of being suspected of having formed traitorous designs, ought to be
treated in a manner totally different from that which was adopted by Mr.
Hastings. If the Rajah of Benares had formed a secret conspiracy, Mr.
Hastings had a state duty and a judicial duty to perform. He was bound,
as Governor, knowing of such a conspiracy, to provide for the public
safety; and as a judge, he was bound to convene a criminal court, and to
lay before it a detailed accusation of the offence. He was bound to
proceed publicly and legally against the accused, and to convict him of
his crime, previous to his inflicting, or forming any intention of
inflicting, punishment. I say, my Lords, that Mr. Hastings, as a
magistrate, was bound to proceed against the Rajah either by English
law, by Mahometan law, or by the Gentoo law; and that, by all or any of
these laws, he was bound to make the accused acquainted with the crime
alleged, to hear his answer to the charge, and to produce evidence
against him, in an open, clear, and judicial manner. And here, my Lords,
we have again to remark, that the Mahometan law is a great discriminator
of persons, and that it prescribes the mode of proceeding against those
who are accused of any delinquency requiring punishment, with a
reference to the distinction and rank which the accused held in society.
The proceedings are exceedingly sober, regular, and respectful, even to
criminals charged with the highest crimes; and every magistrate is
required to exercise his office in the prescribed manner. In the Hedaya,
after declaring and discussing the propriety of the Kâzi's sitting
openly in the execution of his office, it is added, that there is no
impropriety in the Kâzi sitting in his own house to pass judgment, but
it is requisite that he give orders for a free access to the people. It
then proceeds thus:--"It is requisite that such people sit along with
the Kâzi as were used to sit with him, prior to his appointment to the
office; because, if he were to sit alone in his house, he would thereby
give rise to suspicion."[98]
My Lords, having thus seen what the duty of a judge is in such a case,
let us examine whether Mr. Hastings observed any part of the prescribed
rules. First, with regard to the publicity of the matter. Did he ever
give any notice to the Supreme Council of the charges which he says he
had received against Cheyt Sing? Did he accuse the Rajah in the Council,
even when it was reduced to himself and his poor, worn, down, cowed, and
I am afraid bribed colleague, Mr. Wheler? Did he even then, I ask,
produce any one charge against this man? He sat in Council as a
judge,--as an English judge,--as a Mahometan judge,--as a judge by the
Gentoo law, and by the Law of Nature. He should have summoned the party
to appear in person, or by his attorney, before him, and should have
there informed him of the charge against him. But, my Lords, he did not
act thus. He kept the accusation secret in his own bosom. And why?
Because he did not believe it to be true. This may at least be inferred
from his having never informed the Council of the matter. He never
informed the Rajah of Benares of the suspicions entertained against him,
during the discussions which took place respecting the multiplied
demands that were made upon him. He never told this victim, as he has
had the audacity to tell us and all this kingdom in the paper that is
before your Lordships, that he looked upon these refusals to comply with
his demands to be overt acts of rebellion; nor did he ever call upon him
to answer or to justify himself with regard to that imputed conspiracy
or rebellion. Did he tell Sadanund, the Rajah's agent, when that agent
was giving him a bribe or a present in secret, and was thus endeavoring
to deprecate his wrath, that he accepted that bribe because his master
was in rebellion? Never, my Lords; nor did he, when he first reached
Benares, and had the Rajah in his power, suggest one word concerning
this rebellion. Did he, when he met Mr. Markham at Boglipore, where they
consulted about the destruction of this unhappy man, did he tell Mr.
Markham, or did Mr. Markham insinuate to him, any one thing about this
conspiracy and rebellion? No, not a word there, or in his whole progress
up the country. While at Boglipore, he wrote a letter to Lord Macartney
upon the state of the empire, giving him much and various advice. Did he
insinuate in that letter that he was going up to Benares to suppress a
rebellion of the Rajah Cheyt Sing or to punish him? No, not a word. Did
he, my Lords, at the eve of his departure from Calcutta, when he
communicated his intention of taking 500,000_l._, which he calls a fine
or penalty, from the Rajah, did he inform Mr. Wheler of it? No, not a
word of his rebellion, nor anything like it. Did he inform his secret
confidants, Mr. Anderson and Major Palmer, upon that subject? Not a
word, there was not a word dropped from him of any such rebellion, or of
any intention in the Rajah Cheyt Sing to rebel. Did he, when he had
vakeels in every part of the Mahratta empire and in the country of Sujah
Dowlah, when he had in most of those courts English ambassadors and
native spies, did he either from ambassadors or spies receive anything
like authentic intelligence upon this subject? While he was at Benares,
he had in his hands Benaram Pundit, the vakeel of the Rajah of Berar,
his own confidential friend, a person whom he took out of the service of
his master, and to whom he gave a jaghire in this very zemindary of
Benares. This man, so attached to Mr. Hastings, so knowing in all the
transactions of India, neither accused Cheyt Sing of rebellious
intentions, or furnished Mr. Hastings with one single proof that any
conspiracy with any foreign power existed.
In this absence of evidence, My Lords, let us have recourse to
probability. Is it to be believed that the Zemindar of Benares, a person
whom Mr. Hastings describes as being of a timid, weak, irresolute, and
feeble nature, should venture to make war alone with the whole power of
the Company in India, aided by all the powers which Great Britain could
bring to the protection of its Indian empire? Could that poor man, in
his comparatively small district, possibly have formed such an
intention, without giving Mr. Hastings access to the knowledge of the
fact from one or other of the numerous correspondents which he had in
that country?
As to the Rajah's supposed intrigues with the Nabob of Oude: this man
was an actual prisoner of Mr. Hastings, and nothing else,--a mere
vassal, as he says himself, in effect and substance, though not in name.
Can any one believe or think that Mr. Hastings would not have received
from the English Resident, or from some one of that tribe of English
gentlemen and English military collectors who were placed in that
country in the exercise of the most arbitrary powers, some intelligence
which he could trust, if any rebellious designs had really existed
previous to the rebellion which did actually break out upon his
arresting Cheyt Sing?
There was an ancient Roman lawyer, of great fame in the history of Roman
jurisprudence, whom they called _Cui Bono_, from his having first
introduced into juridical proceedings the argument, _What end or object
could the party have had in the art with which he is accused?_ Surely it
may be here asked, Why should Cheyt Sing wish to rebel, who held on easy
and moderate terms (for such I admit they were) a very considerable
territory, with every attribute of royalty attached? The tribute was
paid for protection, which he had a right to claim, and which he
actually received. What reason under heaven could he have to go and seek
another master, to place himself under the protection of Sujah Dowlah,
in whose hands Mr. Hastings tells you, in so many direct and plain
words, that neither the Rajah's property, his honor, or his life could
be safe? Was he to seek refuge with the Mahrattas, who, though Gentoos
like himself, had reduced every nation which they subdued, except those
who were originally of their own empire, to a severe servitude? Can any
one believe that he wished either for the one or the other of these
charges [changes?], or that he was desirous to quit the happy
independent situation in which he stood under the protection of the
British empire, from any loose, wild, improbable notion of mending his
condition? My Lords, it is impossible. There is not one particle of
evidence, not one word of this charge on record, prior to the
publication of Mr. Hastings's Narrative; and all the presumptive
evidence in the world would scarcely be sufficient to prove the fact,
because it is almost impossible that it should be true.
But, my Lords, although Mr. Hastings swore to the truth of this charge,
when he came before the House of Commons, yet in his Narrative he thus
fairly and candidly avowed that he entertained no such opinion at the
time. "Every step," says he, "which I had taken before that fatal
moment, namely, the flight of Cheyt Sing, is an incontrovertible proof
that I had formed no design of seizing upon the Rajah's treasures or of
deposing him. And certainly, at the time when I did form the design of
making the punishment that his former ill conduct deserved subservient
to the exigencies of the state by a large fine, I did not believe him
guilty of that premeditated project for driving the English out of India
with which I afterwards charged him." Thus, then, he declares upon oath
that the Rajah's contumacy was the ground of his suspecting him of
rebellion, and yet, when he comes to make his defence before the House
of Commons, he simply and candidly declares, that, long after these
alleged acts of contumacy had taken place, he did not believe him to be
guilty of any such thing as rebellion, and that the fine imposed upon
him was for another reason and another purpose.
In page 28 of your printed Minutes he thus declares the purpose for
which the fine was imposed:--"I can answer only to this formidable
dilemma, that, so long as I conceived Cheyt Sing's misconduct and
contumacy to have me rather than the Company for its object, at least to
be merely the effect of pernicious advice or misguided folly, without
any formal design of openly resisting our authority or disclaiming our
sovereignty, I looked upon a considerable fine as sufficient both for
his immediate punishment and for binding him to future good behavior."
Here, my Lords, the secret comes out. He declares it was not for a
rebellion or a suspicion of rebellion that he resolved, over and above
all his exorbitant demands, to take from the Rajah 500,000_l._, (a good
stout sum to be taken from a tributary power!)--that it was not for
misconduct of this kind that he took this sum, but for personal ill
behavior towards himself. I must again beg your Lordships to note that
he then considered the Rajah's contumacy as having for its object, not
the Company, but Warren Hastings, and that he afterwards declared
publicly to the House of Commons, and now before your Lordships he
declares finally and conclusively, that he did believe Cheyt Sing to
have had the criminal intention imputed to him.
"So long," says he, "as I conceived Cheyt Sing's misconduct and
contumacy to have _me_" (in Italics, as he ordered it to be printed,)
"rather than the Company, for its object, so long I was satisfied with a
fine: I therefore entertained no serious thoughts of expelling him, or
proceeding otherwise to violence. But when he and his people broke out
into the most atrocious acts of rebellion and murder, when the _jus
fortioris et lex ultima regum_ were appealed to on his part, and without
any sufficient plea afforded him on mine, I from that moment considered
him as the traitor and criminal described in the charge, and no
concessions, no humiliations, could ever after induce me to settle on
him the zemindary of Benares, or any other territory, upon any footing
whatever."
Thus, then, my Lords, he has confessed that the era and the only era of
rebellion was when the tumult broke out upon the act of violence offered
by himself to Cheyt Sing; and upon the ground of that tumult, or
rebellion as he calls it, he says he never would suffer him to enjoy any
territory or any right whatever. We have fixed the period of the
rebellion for which he is supposed to have exacted this fine; this
period of rebellion was after the exaction of the fine itself: so that
the fine was not laid for the rebellion, but the rebellion broke out in
consequence of the fine, and the violent measure accompanying it. We
have established this, and the whole human race cannot shake it. He went
up the country through malice, to revenge his own private wrongs, not
those of the Company. He fixed 500,000_l._ as a mulct for an insult
offered to himself, and then a rebellion broke out in consequence of his
violence. This was the rebellion, and the only rebellion; it was Warren
Hastings's rebellion,--a rebellion which arose from his own dreadful
exaction, from his pride, from his malice and insatiable avarice,--a
rebellion which arose from his abominable tyranny, from his lust of
arbitrary power, and from his determination to follow the examples of
Sujah Dowlah, Asoph ul Dowlah, Cossim Ali Khân, Aliverdy Khân, and all
the gang of rebels who are the objects of his imitation.
"_My patience_," says he, "_was exhausted_." Your Lordships have, and
ought to have, a judicial patience. Mr. Hastings has none of any kind. I
hold that patience is one of the great virtues of a governor; it was
said of Moses, that he governed by patience, and that he was the meekest
man upon earth. Patience is also the distinguishing character of a
judge; and I think your Lordships, both with regard to us and with
regard to him, have shown a great deal of it: we shall ever honor the
quality, and if we pretend to say that we have had great patience in
going through this trial, so your Lordships must have had great patience
in hearing it. But this man's patience, as he himself tells you, was
soon exhausted. "I considered," he says, "the light in which such
behavior would have been viewed by his native sovereign, and I resolved
he should feel the power he had so long insulted. Forty or fifty lacs of
rupees would have been a moderate fine for Sujah ul Dowlah to exact,--he
who had demanded twenty-five lacs for the mere fine of succession, and
received twenty in hand, and an increased rent tantamount to
considerably above thirty lacs more; and therefore I rejected the offer
of twenty, with which the Rajah would have compromised for his guilt
when it was too late."
Now, my Lords, observe who his models were, when he intended to punish
this man for an insult on himself. Did he consult the laws? Did he look
to the Institutes of Timour, or to those of Genghis Khân? Did he look to
the Hedaya, or to any of the approved authorities in this country? No,
my Lords, he exactly followed the advice which Longinus gives to a great
writer:--"Whenever you have a mind to elevate your mind, to raise it to
its highest pitch, and even to exceed yourself, upon any subject, think
how Homer would have described it, how Plato would have imagined it, and
how Demosthenes would have expressed it; and when you have so done, you
will then, no doubt, have a standard which will raise you up to the
dignity of anything that human genius can aspire to." Mr. Hastings was
calling upon himself, and raising his mind to the dignity of what
tyranny could do, what unrighteous exaction could perform. He
considered, he says, how much Sujah Dowlah would have exacted, and that
he thinks would not be too much for him to exact. He boldly avows,--"I
raised my mind to the elevation of Sujah Dowlah; I considered what
Cossim Ali Khân would have done, or Aliverdy Khân, who murdered and
robbed so many, I had all this line of great examples before me, and I
asked myself what fine they would have exacted upon such an occasion.
But," says he, "Sujah Dowlah levied a fine of twenty lacs for a right of
succession."
Good God! my Lords, if you are not appalled with the violent injustice
of arbitrary proceedings, you must feel something humiliating at the
gross ignorance of men who are in this manner playing with the rights of
mankind. This man confounds a fine upon succession with a fine of
penalty. He takes advantage of a defect in the technical language of our
law, which, I am sorry to say, is not, in many parts, as correct in its
distinctions and as wise in its provisions as the Mahometan law. We use
the word _fine_ in three senses: first, as a punishment and penalty;
secondly, as a formal means of cutting off by one form the ties of
another form, which we call levying a fine; and, thirdly, we use the
word to signify a sum of money payable upon renewal of a lease or
copyhold. The word has in each case a totally different sense; but such
is the stupidity and barbarism of the prisoner, that he confounds these
senses, and tells you Sujah Dowlah took twenty-five lacs as a fine from
Cheyt Sing for the renewal of his zemindary, and therefore, as a
punishment for his offences, he shall take fifty. Suppose any one of
your Lordships, or of us, were to be fined for assault and battery, or
for anything else, and it should be said, "You paid such a fine for a
bishop's lease, you paid such a fine on the purchase of an estate, and
therefore, now that you are going to be fined for a punishment, we will
take the measure of the fine, not from the nature and quality of your
offence, not from the law upon the subject, or from your ability to
pay, but the amount of a fine you paid some years ago for an estate
shall be the measure of your punishment." My Lords, what should we say
of such brutish ignorance, and such shocking confusion of ideas?
When this man had elevated his mind according to the rules of art, and
stimulated himself to great things by great examples, he goes on to tell
you that he rejected the offer of twenty lacs with which the Rajah would
have compounded for his guilt when it was too late.
Permit me, my Lords, to say a few words here, by way of referring back
all this monstrous heap of violence and absurdity to some degree of
principle. Mr. Hastings having completely acquitted the Rajah of any
other fault than contumacy, and having supposed even that to be only
personal to himself, he thought a fine of 500,000_l._ would be a proper
punishment. Now, when any man goes to exact a fine, it presupposes
inquiry, charge, defence, and judgment. It does so in the Mahometan law;
it does so in the Gentoo law; it does so in the law of England, in the
Roman law, and in the law, I believe, of every nation under heaven,
except in that law which resides in the arbitrary breast of Mr.
Hastings, poisoned by the principles and stimulated by the examples of
those wicked traitors and rebels whom I have before described. He
mentions his intention of levying a fine; but does he make any mention
of having charged the Rajah with his offences? It appears that he held
an incredible quantity of private correspondence through the various
Residents, through Mr. Graham, Mr. Fowke, Mr. Markham, Mr. Benn,
concerning the affairs of that country. Did he ever, upon this alleged
contumacy, (for at present I put the rebellion out of the question,)
inquire the progress of this personal affront offered to the
Governor-General of Bengal? Did he ever state it to the Rajah, or did he
call his vakeel before the Council to answer the charge? Did he examine
any one person, or particularize a single fact, in any manner whatever?
No. What, then, did he do? Why, my Lords, he declared himself the person
injured, stood forward as the accuser, assumed the office of judge, and
proceeded to judgment without a party before him, without trial, without
examination, without proof. He thus directly reversed the order of
justice. He determined to fine the Rajah when his own patience, as he
says, was exhausted, not when justice demanded the punishment. He
resolved to fine him in the enormous sum of 500,000_l._ Does he inform
the Council of this determination? No. The Court of Directors? No. Any
one of his confidants? No, not one of them,--not Mr. Palmer, not Mr.
Middleton, nor any of that legion of secretaries that he had; nor did he
even inform Mr. Malcolm [Markham?] of his intentions, until he met him
at Boglipore.
In regard to the object of his malice, we only know that many letters
came from Cheyt Sing to Mr. Hastings, in which the unfortunate man
endeavored to appease his wrath, and to none of which he ever gave an
answer. He is an accuser preferring a charge and receiving apologies,
without giving the party an answer, although he had a crowd of
secretaries about him, maintained at the expense of the miserable people
of Benares, and paid by sums of money drawn fraudulently from their
pockets. Still not one word of answer was given, till he had formed the
resolution of exacting a fine, and had actually by torture made his
victim's servant discover where his master's treasures lay, in order
that he might rob him of all his family possessed. Are these the
proceedings of a British judge? or are they not rather such as are
described by Lord Coke (and these learned gentlemen, I dare say, will
remember the passage; it is too striking not to be remembered) as _"the
damned and damnable proceedings of a judge in hell_"? Such a judge has
the prisoner at your bar proved himself to be. First he determines upon
the punishment, then he prepares the accusation, and then by torture and
violence endeavors to extort the fine.
My Lords, I must again beg leave to call your attention to his mode of
proceeding in this business. He never entered any charge. He never
answered any letter. Not that he was idle. He was carrying on a wicked
and clandestine plot for the destruction of the Rajah, under the
pretence of this fine; although the plot was not known, I verily
believe, to any European at the time. He does not pretend that he told
any one of the Company's servants of his intentions of fining the Rajah;
but that some hostile project against him had been formed by Mr.
Hastings was perfectly well known to the natives. Mr. Hastings tells
you, that Cheyt Sing had a vakeel at Calcutta, whose business it was to
learn the general transactions of our government, and the most minute
particulars which could in any manner affect the interest of his
employer.
I must here tell your Lordships, that there is no court in Asia, from
the highest to the lowest, no petty sovereign, that does not both employ
and receive what they call _hircarrahs_, or, in other words, persons to
collect and to communicate political intelligence. These men are
received with the state and in the rank of ambassadors; they have their
place in the durbar; and their business, as authorized spies, is as well
known there as that of ambassadors extraordinary and ordinary in the
courts of Europe. Mr. Hastings had a public spy, in the person of the
Resident, at Benares, and he had a private spy there in another person.
The spies employed by the native powers had by some means come to the
knowledge of Mr. Hastings's clandestine and wicked intentions towards
this unhappy man, Cheyt Sing, and his unhappy country, and of his
designs for the destruction and the utter ruin of both. He has himself
told you, and he has got Mr. Anderson to vouch it, that he had received
proposals for the sale of this miserable man and his country. And from
whom did he receive these proposals, my Lords? Why, from the Nabob Asoph
ul Dowlah, to whom he threatened to transfer both the person of the
Rajah and his zemindary, if he did not redeem himself by some pecuniary
sacrifice. Now Asoph ul Dowlah, as appears by the minutes on your
Lordships' table, was at that time a bankrupt. He was in debt to the
Company tenfold more than he could pay, and all his revenues were
sequestered for that debt. He was a person of the last degree of
indolence with the last degree of rapacity,--a man of whom Mr. Hastings
declared, that he had wasted and destroyed by his misgovernment the
fairest provinces upon earth, that not a person in his dominions was
secure from his violence, and that even his own father could not enjoy
his life and honor in safety under him. This avaricious bankrupt tyrant,
who had beggared and destroyed his own subjects, and could not pay his
debts to the English government, was the man with whom Mr. Hastings was
in treaty to deliver up Cheyt Sing and his country, under pretence of
his not having paid regularly to the Company those customary payments
which the tyrant would probably have never paid at all, if he had been
put in possession of the country. This I mention to illustrate Mr.
Hastings's plans of economy and finance, without considering the
injustice and cruelty of delivering up a man to the hereditary enemy of
his family.
It is known, my Lords, that Mr. Hastings, besides having received
proposals for delivering up the beautiful country of Benares, that
garden of God, as it is styled in India, to that monster, that rapacious
tyrant, Asoph ul Dowlah, who with his gang of mercenary troops had
desolated his own country like a swarm of locusts, had purposed likewise
to seize Cheyt Sing's own patrimonial forts, which was nothing less than
to take from him the residence of his women and his children, the seat
of his honor, the place in which the remaining treasures and last hopes
of his family were centred. By the Gentoo law, every lord or supreme
magistrate is bound to construct and to live in such a fort. It is the
usage of India, and is a matter of state and dignity, as well as of
propriety, reason, and defence. It was probably an apprehension of being
injured in this tender point, as well as a knowledge of the proposal
made by the Nabob, which induced Cheyt Sing to offer to buy himself off;
although it does not appear from any part of the evidence that he
assigned any other reason than that of Mr. Hastings intending to exact
from him six lacs of rupees over and above his other exactions.
Mr. Hastings, indeed, almost acknowledges the existence of this plot
against the Rajah, and his being the author of it. He says, without any
denial of the fact, that the Rajah suspected some strong acts to be
intended against him, and therefore asked Mr. Markham whether he could
not buy them off and obtain Mr. Hastings's favor by the payment of
200,000_l._ Mr. Markham gave as his opinion, that 200,000_l._ was not
sufficient; and the next day the Rajah offered 20,000_l._ more, in all
220,000_l._ The negotiation, however, broke off; and why? Not, as Mr.
Markham says he conjectured, because the Rajah had learned that Mr.
Hastings had no longer an intention of imposing these six lacs, or
something to that effect, and therefore retracted his offer, but because
that offer had been rejected by Mr. Hastings.
Let us hear what reason the man who was in the true secret gives for not
accepting the Rajah's offer. "I rejected," says Mr. Hastings, "the offer
of twenty lacs, with which the Rajah would have compromised for his
guilt when it was too late." My Lords, he best knows what the motives of
his own actions were. He says, the offer was made "when it was too
late." Had he previously told the Rajah what sum of money he would be
required to pay in order to buy himself off, or had he required him to
name any sum which he was willing to pay? Did he, after having refused
the offer made by the Rajah, say, "Come and make me a better offer, or
upon such a day I shall declare that your offers are inadmissible"? No
such thing appears. Your Lordships will further remark, that Mr.
Hastings refused the 200,000_l._ at a time when the exigencies of the
Company were so pressing that he was obliged to rob, pilfer, and steal
upon every side,--at a time when he was borrowing 40,000_l._ from Mr.
Sulivan in one morning, and raising by other under-jobs 27,000_l._ more.
In the distress [in?] which his own extravagance and prodigality had
involved him, 200,000_l._ would have been a weighty benefit, although
derived from his villany; but this relief he positively refused,
because, says he, "the offer came too late." From these words, my Lords,
we may infer that there was a time when the offer would not have been
"too late,"--a period at which it would have been readily accepted. No
such thing appears. There is not a trace upon your minutes, not a trace
in the correspondence of the Company, to prove that the Rajah would at
any time have been permitted to buy himself off from this complicated
tyranny.
I have already stated a curious circumstance in this proceeding, to
which I must again beg leave to direct your Lordships' attention. Does
it anywhere appear in that correspondence, or in the testimony of Mr.
Benn, of Mr. Markham, or of any human being, that Mr. Hastings had ever
told Cheyt Sing with what sum he should be satisfied? There is evidence
before you directly in proof that they did not know the amount. Not one
person knew what his intention was, when he refused this 200,000_l._ For
when he met Mr. Markham at Boglipore, and for the first time mentioned
the sum of 500,000_l._ as the fine he meant to exact, Mr. Markham was
astonished and confounded at its magnitude. He tells you this himself.
It appears, then, that neither Cheyt Sing nor the Resident at Benares
(who ought to have been in the secret, if upon such an occasion secrecy
is allowable) ever knew what the terms were. The Rajah was in the dark;
he was left to feel, blindfold, how much money could relieve him from
the iniquitous intentions of Mr. Hastings; and at last he is told that
his offer comes too late, without having ever been told the period at
which it would have been well-timed, or the amount it was proposed to
take from him. Is this, my Lords, the proper way to adjudge a fine?
Your Lordships will now be pleased to advert to the manner in which he
defends himself and these proceedings. He says, "I rejected this offer
of twenty lacs, with which the Rajah would have compromised for his
guilt when it was too late." If by these words he means too late to
answer the purpose for which he has said the fine was designed, namely,
the relief of the Company, the ground of his defence is absolutely
false; for it is notorious that at the time referred to the Company's
affairs were in the greatest distress.
I will next call your Lordships' attention to the projected sale of
Benares to the Nabob of Oude. "If," says Mr. Hastings, "I ever talked of
selling the Company's sovereignty over Benares to the Nabob of Oude, it
was but _in terrorem_; and no subsequent act of mine warrants the
supposition of my having seriously intended it." And in another place he
says, "If I ever threatened" (your Lordships will remark, that he puts
hypothetically a matter the reality of which he has got to be solemnly
declared on an affidavit, and in a narrative to the truth of which he
has deposed upon oath)--"if I ever threatened," says he, "to dispossess
the Rajah of his territories, it is no more than what my predecessors,
without rebuke from their superiors, or notice taken of the expression,
had wished and intended to have done to his father, even when the
Company had no pretensions to the sovereignty of the country. It is no
more than such a legal act of sovereignty as his behavior justified, and
as I was justified in by the intentions of my predecessors. If I
pretended to seize upon his forts, it was in full conviction that a
dependant on the Company, guarantied, maintained, and protected in his
country by the Company's arms, had no occasion for forts, had no right
to them, and could hold them for no other than suspected and rebellious
purposes. None of the Company's other zemindars are permitted to
maintain them; and even our ally, the Nabob of the Carnatic, has the
Company's troops in all his garrisons. Policy and public safety
absolutely require it. What state could exist that allowed its inferior
members to hold forts and garrisons independent of the superior
administration? It is a solecism in government to suppose it."
Here, then, my Lords, he first declares that this was merely done _in
terrorem_; that he never intended to execute the abominable act. And
will your Lordships patiently endure that such terrific threats as these
shall be hung by your Governor in India over the unhappy people that are
subject to him and protected by British faith? Will you permit, that,
for the purpose of extorting money, a Governor shall hold out the
terrible threat of delivering a tributary prince and his people, bound
hand and foot, into the power of their perfidious enemies?
The terror occasioned by threatening to take from him his forts can only
be estimated by considering, that, agreeably to the religion and
prejudices of Hindoos, the forts are the places in which their women are
lodged, in which, according to their notions, their honor is deposited,
and in which is lodged all the wealth that they can save against an evil
day to purchase off the vengeance of an enemy. These forts Mr. Hastings
says he intended to take, because the Rajah could hold them for no other
than rebellious and suspected purposes. Now I will show your Lordships
that the man who has the horrible audacity to make this declaration did
himself assign to the Rajah these very forts. He put him in possession
of them, and, when there was a dispute about the Nabob's rights to them
on the one side and the Company's on the other, did confirm them to this
man. The paper shall be produced, that you may have before your eyes the
gross contradictions into which his rapacity and acts of arbitrary power
have betrayed him. Thank God, my Lords, men that are greatly guilty are
never wise. I repeat it, men that are greatly guilty are never wise. In
their defence of one crime they are sure to meet the ghost of some
former defence, which, like the spectre in Virgil, drives them back. The
prisoner at your bar, like the hero of the poet, when he attempts to
make his escape by one evasion, is stopped by the appearance of some
former contradictory averment. If he attempts to escape by one door,
there his criminal allegations of one kind stop him; if he attempts to
escape at another, the facts and allegations intended for some other
wicked purpose stare him full in the face.
Quacunque viam sibi fraude petivit,
Successum Dea dira negat.
The paper I hold in my hand contains Nundcomar's accusation of Mr.
Hastings. It consists of a variety of charges; and I will first read to
you what is said by Nundcomar of these forts, which it is pretended
could be held for none but suspicious and rebellious purposes.
"At the time Mr. Hastings was going to Benares, he desired me to give
him an account in writing of any lands which, though properly belonging
to the Subah of Bahar, might have come under the dominion of Bulwant
Sing, that they might be recovered from his son, Rajah Cheyt Sing. The
purgunnahs of Kera, Mungrora, and Bidjegur were exactly in this
situation, having been usurped by Bulwant Sing from the Subah of Bahar.
I accordingly delivered to Mr. Hastings the accounts of them, from the
entrance of the Company upon the dewanny to the year 1179 of the Fusseli
era, stated at twenty-four lacs. Mr. Hastings said, 'Give a copy of this
to Roy Rada Churn, that, if Cheyt Sing is backward in acknowledging this
claim, Rada Churn may answer and confute him.' Why Mr. Hastings, when he
arrived at Benares, and had called Rajah Cheyt Sing before him, left
these countries still in the Rajah's usurpations it remains with Mr.
Hastings to explain."
This is Nundcomar's charge. Here follows Mr. Hastings's reply.
"I recollect an information given me by Nundcomar concerning the
pretended usurpations made by the Rajah of Benares, of the purgunnahs of
Kera, Mungrora, and Bidjegur." (Your Lordships will recollect that
Bidjegur is one of those very forts which he declares could not be held
but for suspicious and rebellious purposes.) "I do not recollect his
mentioning it again, when I set out for Benares; neither did I ever
intimate the subject, either to Cheyt Sing or his ministers, because I
knew I could not support the claim; and to have made it and dropped it
would have been in every sense dishonorable. Not that I passed by it
with indifference or inattention. I took pains to investigate the
foundation of this title, and recommended it to the particular inquiry
of Mr. Vansittart, who was the Chief of Patna, at the time in which I
received the first intimation. The following letter and voucher, which I
received from him, contain a complete statement of this pretended
usurpation."
These vouchers will answer our purpose, fully to establish that in his
opinion the claim of the English government upon those forts was at that
time totally unfounded, and so absurd that he did not even dare to
mention it. This fort of Bidjegur, the most considerable in the country,
and of which we shall have much to say hereafter, is the place in which
Cheyt Sing had deposited his women and family. That fortress did Mr.
Hastings himself give to this very man, deciding in his favor as a
judge, upon an examination and after an inquiry: and yet he now declares
that he had no right to it, and that he could not hold it but for wicked
and rebellious purposes. But, my Lords, when he changed this language,
he had resolved to take away these forts,--to destroy them,--to root the
Rajah out of every place of refuge, out of every secure place in which
he could hide his head, or screen himself from the rancor, revenge,
avarice, and malice of his ruthless foe. He was resolved to have them,
although he had, upon the fullest conviction of the Rajah's right, given
them to this very man, and put him into the absolute possession of them.
Again, my Lords, did he, when Cheyt Sing, in 1775, was put in possession
by the _pottah_ of the Governor-General and Council, which contains an
enumeration of the names of all the places which were given up to him,
and consequently of this among the rest,--did he, either before he put
the question in Council upon that pottah, or afterwards, tell the
Council they were going to put forts into the man's hands to which he
had no right, and which could be held only for rebellious and suspected
purposes? We refer your Lordships to the places in which all these
transactions are mentioned, and you will there find Mr. Hastings took no
one exception whatever against them; nor, till he was resolved upon the
destruction of this unhappy man, did he ever so much as mention them. It
was not till then that he discovers the possession of these forts by the
Rajah to be _a solecism in government_.
After quoting the noble examples of Sujah Dowlah, and the other persons
whom I have mentioned to you, he proceeds to say, that some of his
predecessors, without any pretensions to sovereign authority, endeavored
to get these forts into their possession; and "I was justified," says
he, "by the intention of my predecessors." Merciful God! if anything can
surpass what he has said before, it is this: "My predecessors, without
any title of sovereignty, without any right whatever, wished to get
these forts into their power; I therefore have a right to do what they
wished to do; and I am justified, not by the acts, but by the
_intentions_ of my predecessors." At the same time he knows that these
predecessors had been reprobated by the Company for this part of their
proceedings; he knew that he was sent there to introduce a better
system, and to put an end to this state of rapacity. Still, whatever his
predecessors _wished_, however unjust and violent it might be, when the
sovereignty came into his hands, he maintains that he had a right to do
all which they were desirous of accomplishing. Thus the enormities
formerly practised, which the Company sent him to correct, became a
sacred standard for his imitation.
Your Lordships will observe that he slips in the word _sovereignty_ and
forgets compact; because it is plain, and your Lordships must perceive
it, that, wherever he uses the word sovereignty, he uses it to destroy
the authority of all compacts; and accordingly in the passage now before
us he declares that there is an invalidity in all compacts entered into
in India, from the nature, state, and constitution of that empire. "From
the disorderly form of its government," says he, "there is an invalidity
in all compacts and treaties whatever." "Persons who had no treaty with
the Rajah wished," says he, "to rob him: therefore I, who have a treaty
with him, and call myself his sovereign, have a right to realize all
their wishes."
But the fact is, my Lords, that his predecessors never did propose to
deprive Bulwant Sing, the father of Cheyt Sing, of his zemindary. They,
indeed, wished to have had the dewanny transferred to them, in the
manner it has since been transferred to the Company. They wished to
receive his rents, and to be made an intermediate party between him and
the Mogul emperor, his sovereign. These predecessors had entered into
no compact with the man: they were negotiating with his sovereign for
the transfer of the dewanny or stewardship of the country, which
transfer was afterwards actually executed; but they were obliged to give
the country itself back again to Bulwant Sing, with a guaranty against
all the pretensions of Sujah Dowlah, who had tyrannically assumed an
arbitrary power over it. This power the predecessors of Mr. Hastings
might also have wished to assume; and he may therefore say, according to
the mode of reasoning which he has adopted,--"Whatever they wished to
do, but never succeeded in doing, I may and ought to do of my own will.
Whatever fine Sujah Dowlah would have exacted I will exact. I will
penetrate into that tiger's bosom, and discover the latent seeds of
rapacity and injustice which lurk there, and I will make him the subject
of my imitation."
These are the principles upon which, without accuser, without judge,
without inquiry, he resolved to lay a fine of 500,000_l._ on Cheyt Sing!
In order to bind himself to a strict fulfilment of this resolution, he
has laid down another very extraordinary doctrine. He has laid it down
as a sort of canon, (in injustice and corruption,) that, whatever
demand, whether just or unjust, a man declares his intention of making
upon another, he should exact the precise sum which he has determined
upon, and that, if he takes anything less, it is a proof of corruption.
"I have," says he, "shown by this testimony that I never intended to
make any communication to Cheyt Sing of taking less than the fifty lacs
which in my own mind I had resolved to exact." And he adds,--"I shall
make my last and solemn appeal to the breast of every man who shall read
this, whether it is likely, or morally possible, that I should have tied
down my own future conduct to so decided a process and series of acts,
if I had secretly intended to threaten, or to use a degree of violence,
for no other purpose than to draw from the object of it a mercenary
atonement for my own private emolument, and suffer all this tumult to
terminate in an ostensible and unsubstantial submission to the authority
which I represented."
He had just before said, "If I ever talked of selling the Company's
sovereignty to the Nabob of Oude, it was only _in terrorem_." In the
face of this assertion, he here gives you to understand he never held
out anything _in terrorem_, but what he intended to execute. But we will
show you that in fact he had reserved to himself a power of acting _pro
re nata_, and that he intended to compound or not, just as answered his
purposes upon this occasion. "I admit," he says, "that I did not enter
it [the intention of fining Cheyt Sing] on the Consultations, because it
was not necessary; even this plan itself of the fine was not a fixed
plan, but to be regulated by circumstances, both as to the substantial
execution of it and the mode." Now here is a man who has given it in a
sworn narrative, that he did not intend to have a farthing less. Why?
"Because I should have menaced and done as in former times has been
done,--made great and violent demands which I reduce afterwards for my
own corrupt purposes." Yet he tells you in the course of the same
defence, but in another paper, that he had no fixed plan, that he did
not know whether he should exact a fine at all, or what should be his
mode of executing it.
My Lords, what shall we say to this man, who declares that it would be a
proof of corruption not to exact the full sum which he had threatened to
exact, but who, finding that this doctrine would press hard upon him,
and be considered as a proof of cruelty and injustice, turns round and
declares he had no intention of exacting anything? What shall we say to
a man who thus reserves his determination, who threatens to sell a
tributary prince to a tyrant, and cannot decide whether he should take
from him his forts and pillage him of all he had, whether he should
raise 500,000_l._ upon him, whether he should accept the 220,000_l._
offered, (which, by the way, we never knew of till long after the whole
transaction,) whether he should do any or all of those things, and then,
by his own account, going up to Benares without having resolved anything
upon this important subject?
My Lords, I will now assume the hypothesis that he at last discovered
sufficient proof of rebellious practices; still even this gave him no
right to adduce such rebellion in justification of resolutions which he
had taken, of acts which he had done, before he knew anything of its
existence. To such a plea we answer, and your Lordships will every one
of you answer,--"You shall not by a subsequent discovery of rebellious
practices, which you did not know at the time, and which you did not
even believe, as you have expressly told us here, justify your conduct
prior to that discovery." If the conspiracy which he falsely imputes to
Cheyt Sing, if that wild scheme of driving the English out of India, had
existed, think in what miserable circumstances we stand as prosecutors,
and your Lordships as judges, if we admit a discovery to be pleaded in
justification of antecedent acts founded upon the assumed existence of
that which he had no sort of proof, knowledge, or belief of!
My Lords, we shall now proceed to another circumstance, not less
culpable in itself, though less shocking to your feelings, than those to
which I have already called your attention: a circumstance which throws
a strong presumption of guilt upon every part of the prisoner's conduct.
Having formed all these infernal plots in his mind, but uncertain which
of them he should execute, uncertain what sums of money he should
extort, whether he should deliver up the Rajah to his enemy or pillage
his forts, he goes up to Benares; but he first delegates to himself all
the powers of government, both civil and military, in the countries
which he was going to visit.
My Lords, we have asserted in our charge that this delegation and
division of power was illegal. He invested _himself_ with this
authority; for _he_ was the majority in the Council: Mr. Wheler's
consent or dissent signifying nothing. He gave himself powers which the
act of Parliament did not give him. He went up to Benares with an
illegal commission, civil and military; and to prove this I shall beg
leave to read the provisions of the act of Parliament. I shall show what
the creature ought to be, by showing the law of the creator: what the
legislature of Great Britain meant that Governor Hastings should be, not
what he made himself.
[_Mr. Burke then read the seventh section of the act._]
Now we do deny that there is by this act given, or that under this act
there can be given, to the government of India, a power of dividing its
unity into two parts, each of which shall separately be a unity and
possess the power given to the whole. Yet, my Lords, an agreement was
made between him and Mr. Wheler, that he (Mr. Hastings) should have
every power, civil and military, in the upper provinces, and that Mr.
Wheler should enjoy equal authority in the lower ones.
Now, to show you that it is impossible for such an agreement to be
legal, we must refer you to the constitution of the Company's
government. The whole power is vested in the Council, where all
questions are to be decided by a majority of voices, and the members are
directed to record in the minutes of their proceedings not only the
questions decided, but the grounds upon which each individual member
founds his vote. Now, although the Council is competent to delegate its
authority for any _specific_ purpose to any servant of the Company, yet
to admit that it can delegate its authority _generally_, without
reserving the means of deliberation and control, would be to change the
whole constitution. By such a proceeding the government may be divided
into a number of independent governments, without a common deliberative
Council and control. This deliberative capacity, which is so strictly
guarded by the obligation of recording its consultations, would be
totally annihilated, if the Council divided itself into independent
parts, each acting according to its own discretion. There is no similar
instance in law, there is no similar instance in policy. The conduct of
these men implies a direct contradiction; and you will see, by the
agreement they made to support each other, that they were themselves
conscious of the illegality of this proceeding.
After Mr. Hastings had conferred absolute power upon himself during his
stay in the upper provinces by an order of Council, (of which Council he
was himself a majority,) he entered the following minute in the
Consultations. "The Governor-General delivers in the following minute.
In my minute which I laid before the court on the 21st May, I expressed
the satisfaction with which I could at this juncture leave the
Presidency, from the mutual confidence which was happily established
between Mr. Wheler and me. I now readily repeat that sentiment, and
observe with pleasure that Mr. Wheler confirms it. Before my departure,
it is probable that we shall in concert have provided at the board for
almost every important circumstance that can eventually happen during my
absence; but if any should occur for which no previous provision shall
have been made in the resolutions of the board, Mr. Wheler may act with
immediate decision, and with the fullest confidence of my support, in
all such emergencies, as well as in conducting the ordinary business of
the Presidency, and in general in all matters of this government,
excepting those which may specially or generally be intrusted to me. Mr.
Wheler during my absence may consider himself as possessed of the full
powers of the Governor-General and Council of this government, as in
effect he is by the constitution; and he may be assured, that, so far as
my sanction and concurrence shall be, or be deemed, necessary to the
confirmation of his measures, he shall receive them."
Now here is a compact of iniquity between these two duumvirs. They each
give to the other the full, complete, and perfect powers of the
government; and in order to secure themselves against any obstacles that
might arise, they mutually engage to ratify each other's acts: and they
say this is not illegal, because Lord Cornwallis has had such a
deputation. I must first beg leave to observe that no man can justify
himself in doing any illegal act by its having been done by another;
much less can he justify his own illegal act by pleading an act of the
same kind done subsequently to his act, because the latter may have been
done in consequence of his bad example. Men justify their acts in two
ways,--by law and by precedent; the former asserts the right, the latter
presumes it from the example of others. But can any man justify an act,
because ten or a dozen years after another man has done the same thing?
Good heavens! was there ever such a doctrine before heard? Suppose Lord
Cornwallis to have done wrong; suppose him to have acted illegally; does
that clear the prisoner at your bar? No: on the contrary, it aggravates
his offence; because he has afforded others an example of corrupt and
illegal conduct. But if even Lord Cornwallis had preceded, instead of
following him, the example would not have furnished a justification.
There is no resemblance in the cases. Lord Cornwallis does not hold his
government by the act of 1773, but by a special act made afterwards; and
therefore to attempt to justify acts done under one form of appointment
by acts done under another form is to the last degree wild and absurd.
Lord Cornwallis was going to conduct a war of great magnitude, and was
consequently trusted with extraordinary powers. He went in the two
characters of governor and commander-in-chief; and yet the legislature
was sensible of the doubtful validity of a Governor-General's carrying
with him the whole powers of the Council. But Mr. Hastings was not
commander-in-chief, when he assumed the whole military as well as civil
power. Lord Cornwallis, as I have just said, was not only
commander-in-chief, but was going to a great war, where he might have
occasion to treat with the country powers in a civil capacity; and yet
so doubtful was the legislature upon this point, that they passed a
special act to confirm that delegation, and to give him a power of
acting under it.
My Lords, we do further contend that Mr. Hastings had no right to assume
the character of commander-in-chief; for he was no military man, nor was
he appointed by the Company to that trust. His assumption of the
military authority was a gross usurpation. It was an authority to which
he would have had no right, if the whole powers of government were
vested in him, and he had carried his Council with him on his horse. If,
I say, Mr. Hastings had his Council on his crupper, he could neither
have given those powers to himself nor made a partition of them with Mr.
Wheler. Could Lord Cornwallis, for instance, who carried with him the
power of commander-in-chief, and authority to conclude treaties with all
the native powers, could he, I ask, have left a Council behind him in
Calcutta with equal powers, who might have concluded treaties in direct
contradiction to those in which he was engaged? Clearly he could not;
therefore I contend that this partition of power, which supposes an
integral authority in each counsellor, is a monster that cannot exist.
This the parties themselves felt so strongly that they were obliged to
have recourse to a stratagem scarcely less absurd than their divided
assumption of power. They entered into a compact to confirm each other's
acts, and to support each other in whatever they did: thus attempting to
give their separate acts a legal form.
I have further to remark to your Lordships, what has just been suggested
to me, that it was for the express purpose of legalizing Lord
Cornwallis's delegation that he was made commander-in-chief as well as
Governor-General by the act.
The next plea urged by Mr. Hastings is conveniency. "It was
_convenient_," he says, "for me to do this." I answer, No person acting
with delegated power can delegate that power to another. _Delegatus non
potest delegare_ is a maxim of law. Much less has he a right to
supersede the law, and the principle of his own delegation and
appointment, upon any idea of convenience. But what was the conveniency?
There was no one professed object connected with Mr. Hastings's going up
to Benares which might not as well have been attained in Calcutta. The
only difference would have been, that in the latter case he must have
entered some part of his proceedings upon the Consultations, whether he
wished it or not. If he had a mind to negotiate with the Vizier, he had
a resident at his court, and the Vizier had a resident in Calcutta. The
most solemn treaties had often been made without any Governor-General
carrying up a delegation of civil and military power. If it had been
his object to break treaties, he might have broken them at Calcutta, as
he broke the treaty of Chunar. Is there an article in that treaty that
he might not as well have made at Calcutta? Is there an article that he
broke (for he broke them all) that he could not have broken at Calcutta?
So that, whether pledging or breaking the faith of the Company, he might
have done both or either without ever stirring from the Presidency.
I can conceive a necessity so urgent as to supersede all laws; but I
have no conception of a necessity that can require two
governors-general, each forming separately a _supreme_ council. Nay, to
bring the point home to him,--if he had a mind to make Cheyt Sing to pay
a fine, as he called it, he could have made him do that at Calcutta as
well as at Benares. He had before contrived to make him pay all the
extra demands that were imposed upon him; and he well knew that he could
send Colonel Camac, or somebody else, to Benares, with a body of troops
to enforce the payment. Why, then, did he go to try experiments there in
his own person? For this plain reason: that he might be enabled to put
such sums in his own pocket as he thought fit. It was not and could not
be for any other purpose; and I defy the wit of man to find out any
other.
He says, my Lords, that Cheyt Sing might have resisted, and that, if he
had not been there, the Rajah might have fled with his money, or raised
a rebellion for the purpose of avoiding payment. Why, then, we ask, did
he not send an army? We ask, whether Mr. Markham, with an army under the
command of Colonel Popham, or Mr. Fowke, or any other Resident, was not
much more likely to exact a great sum of money than Mr. Hastings
without an army? My Lords, the answer must be in the affirmative; it is
therefore evident that no necessity could exist for his presence, and
that his presence and conduct occasioned his being defeated in this
matter.
We find this man, armed with an illegal commission, undertaking an
enterprise which he has since said was perilous, which proved to be
perilous, and in which, as he has told us himself, the existence of the
British empire in India was involved. The talisman, (your Lordships will
remember his use of the word,) that charm which kept all India in order,
which kept mighty and warlike nations under the government of a few
Englishmen, would, I verily believe, have been broken forever, if he, or
any other Governor-General, good or bad, had been killed. Infinite
mischiefs would have followed such an event. The situation in which he
placed himself, by his own misconduct, was pregnant with danger; and he
put himself in the way of that danger without having any armed force
worth mentioning, although he has acknowledged that Cheyt Sing had then
an immense force. In fact, the demand of two thousand cavalry proves
that he considered the Rajah's army to be formidable; yet,
notwithstanding this, with four companies of sepoys, poorly armed and
ill provisioned, he went to invade that fine country, and to force from
its sovereign a sum of money, the payment of which he had reason to
think would be resisted. He thus rashly hazarded his own being and the
being of all his people.
"But," says he, "I did not imagine the Rajah intended to go into
rebellion, and therefore went unarmed." Why, then, was his presence
necessary? Why did he not send an order from Calcutta for the payment of
the money? But what did he do, when he got there? "I was alarmed," says
he; "for the Rajah surrounded my budgero with two thousand men: that
indicated a hostile disposition." Well, if he did so, what precaution
did Mr. Hastings take for his own safety? Why, none, my Lords, none. He
must therefore have been either a madman, a fool, or a determined
declarer of falsehood. Either he thought there was no danger, and
therefore no occasion for providing against it, or he was the worst of
governors, the most culpably improvident of his personal safety, of the
lives of his officers and men, and of his country's honor.
The demand of 500,000_l._ was a thing likely to irritate the Rajah and
to create resistance. In fact, he confesses this. Mr. Markham and he had
a discourse upon that subject, and agreed to arrest the Rajah, because
they thought the enforcing this demand might drive him to his forts, and
excite a rebellion in the country. He therefore knew there was danger to
be apprehended from this act of violence. And yet, knowing this, he sent
one unarmed Resident to give the orders, and four unarmed companies of
sepoys to support him. He provokes the people, he goads them with every
kind of insult added to every kind of injury, and then rushes into the
very jaws of danger, provoking a formidable foe by the display of a
puny, insignificant force.
In expectation of danger, he seized the person of the Rajah, and he
pretends that the Rajah suffered no disgrace from his arrest. But, my
Lords, we have proved, what was stated by the Rajah, and was well known
to Mr. Hastings, that to imprison a person of elevated station, in that
country, is to subject him to the highest dishonor and disgrace, and
would make the person so imprisoned utterly unfit to execute the
functions of government ever after.
I have now to state to your Lordships a transaction which is worse than
his wantonly playing with the safety of the Company, worse than his
exacting sums of money by fraud and violence. My Lords, the history of
this transaction must be prefaced by describing to your Lordships the
duty and privileges attached to the office of _Naib_. A Naib is an
officer well known in India, as the administrator of the affairs of any
government, whenever the authority of the regular holder is suspended.
But, although the Naib acts only as a deputy, yet, when the power of the
principal is totally superseded, as by imprisonment or otherwise, and
that of the Naib is substituted, he becomes the actual sovereign, and
the principal is reduced to a mere pensioner. I am now to show your
Lordships whom Mr. Hastings appointed as Naib to the government of the
country, after he had imprisoned the Rajah.
Cheyt Sing had given him to understand through Mr. Markham, that he was
aware of the design of suspending him, and of placing his government in
the hands of a Naib whom he greatly dreaded. This person was called
Ussaun Sing; he was a remote relation of the family, and an object of
their peculiar suspicion and terror. The moment Cheyt Sing was arrested,
he found that his prophetic soul spoke truly; for Mr. Hastings actually
appointed this very man to be his master. And who was this man? We are
told by Mr. Markham, in his evidence here, that he was a man who had
dishonored his family,--he was the disgrace of his house,--that he was a
person who could not be trusted; and Mr. Hastings, in giving Mr. Markham
full power afterwards to appoint Naibs, expressly excepted this Ussaun
Sing from all trust whatever, as a person totally unworthy of it. Yet
this Ussaun Sing, the disgrace and calamity of his family, an incestuous
adulterer, and a supposed issue of a guilty connection, was declared
Naib. Yes, my Lords, this degraded, this wicked and flagitious
character, the Rajah's avowed enemy, was, in order to heighten the
Rajah's disgrace, to embitter his ruin, to make destruction itself
dishonorable as well as destructive, appointed this [his?] Naib. Thus,
when Mr. Hastings had imprisoned the Rajah, in the face of his subjects,
and in the face of all India, without fixing any term for the duration
of his imprisonment, he delivered up the country to a man whom he knew
to be utterly undeserving, a man whom he kept in view for the purpose of
frightening the Rajah, and whom he was obliged to depose on account of
his misconduct almost as soon as he had named him, and to exclude
specially from all kind of trust. We have heard of much tyranny,
avarice, and insult in the world; but such an instance of tyranny,
avarice, and insult combined has never before been exhibited.
We are now come to the last scene of this flagitious transaction. When
Mr. Hastings imprisoned the Rajah, he did not renew his demand for the
500,000_l._, but he exhibited a regular charge of various pretended
delinquencies against him, digested into heads, and he called on him, in
a dilatory, irregular way of proceeding, for an answer. The man, under
every difficulty and every distress, gave an answer to every particular
of the charge, as exact and punctilious as could have been made to
articles of impeachment in this House.
I must here request your Lordships to consider the order of these
proceedings. Mr. Hastings, having determined upon the utter ruin and
destruction of this unfortunate prince, endeavored, by the arrest of his
person, by a contemptuous disregard to his submissive applications, by
the appointment of a deputy who was personally odious to him, and by the
terror of still greater insults, he endeavored, I say, to goad him on to
the commission of some acts of resistance sufficient to give a color of
justice to that last dreadful extremity to which he had resolved to
carry his malignant rapacity. Failing in this wicked project, and
studiously avoiding the declaration of any terms upon which the Rajah
might redeem himself from these violent proceedings, he next declared
his intention of seizing his forts, the depository of his victim's
honor, and of the means of his subsistence. He required him to deliver
up his accounts and accountants, together with all persons who were
acquainted with the particulars of his effects and treasures, for the
purpose of transferring those effects to such persons as he (Mr.
Hastings) chose to nominate.
It was at this crisis of aggravated insult and brutality that the
indignation which these proceedings had occasioned in the breasts of the
Rajah's subjects burst out into an open flame. The Rajah had retired to
the last refuge of the afflicted, to offer up prayers to his God and our
God, when a vile _chubdar_, or tipstaff, came to interrupt and insult
him. His alarmed and loyal subjects felt for a beloved sovereign that
deep interest which we should all feel, if our sovereign were so
treated. What man with a spark of loyalty in his breast, what man
regardful of the honor of his country, when he saw his sovereign
imprisoned, and so notorious a wretch appointed his deputy, could be a
patient witness of such wrongs? The subjects of this unfortunate prince
did what we should have done,--what all who love their country, who love
their liberty, who love their laws, who love their property, who love
their sovereign, would have done on such an occasion. They looked upon
him as their sovereign, although degraded. They were unacquainted with
any authority superior to his, and the phantom of tyranny which
performed these oppressive acts was unaccompanied by that force which
justifies submission by affording the plea of necessity. An unseen
tyrant and four miserable companies of sepoys executed all the horrible
things that we have mentioned. The spirit of the Rajah's subjects was
roused by their wrongs, and encouraged by the contemptible weakness of
their oppressors. The whole country rose up in rebellion, and surely in
justifiable rebellion. Every writer on the Law of Nations, every man
that has written, thought, or felt upon the affairs of government, must
write, know, think, and feel, that a people so cruelly scourged and
oppressed, both in the person of their chief and in their own persons,
were justified in their resistance. They were roused to vengeance, and a
short, but most bloody war followed.
We charge the prisoner at your bar with all the consequences of this
war. We charge him with the murder of our sepoys, whom he sent unarmed
to such a dangerous enterprise. We charge him with the blood of every
man that was shed in that place; and we call him, as we have called him,
a tyrant, an oppressor, and a murderer. We call him murderer in the
largest and fullest sense of the word; because he was the cause of the
murder of our English officers and sepoys, whom he kept unarmed, and
unacquainted with the danger to which they would be exposed by the
violence of his transactions. He sacrificed to his own nefarious views
every one of those lives, as well as the lives of the innocent natives
of Benares, whom he designedly drove to resistance by the weakness of
the force opposed to them, after inciting them by tyranny and insult to
that display of affection towards their sovereign which is the duty of
all good subjects.
My Lords, these are the iniquities which we have charged upon the
prisoner at your bar; and I will next call your Lordships' attention to
the manner in which these iniquities have been pretended to be
justified. You will perceive a great difference in the manner in which
this prisoner is tried, and of which he so much complains, and the
manner in which he dealt with the unfortunate object of his oppression.
The latter thus openly appeals to his accuser. "You are," says he, "upon
the spot. It is happy for me that you are so. You can now inquire into
my conduct." Did Mr. Hastings so inquire? No, my Lords, we have not a
word of any inquiry; he even found fresh matter of charge in the answer
of the Rajah, although, if there is any fault in this answer, it is its
extremely humble and submissive tone. If there was anything faulty in
his manner, it was his extreme humility and submission. It is plain he
would have almost submitted to anything. He offered, in fact,
220,000_l._ to redeem himself from greater suffering. Surely no man
going into rebellion would offer 220,000_l._ of the treasure which would
be so essential to his success; nor would any government that was really
apprehensive of rebellion call upon the suspected person to arm and
discipline two thousand horse. My Lords, it is evident no such
apprehensions were entertained; nor was any such charge made until
punishment had commenced. A vague accusation was then brought forward,
which was answered by a clear and a natural defence, denying some parts
of the charge, evading and apologizing for others, and desiring the
whole to be inquired into. To this request the answer of the
Governor-General was, "That won't do; you shall have no inquiries." And
why? "Because I have arbitrary power, you have no rights, and I can and
will punish you without inquiry." I admit, that, if his will is the law,
he may take [make?] the charge before punishment or the punishment
before the charge, or he may punish without making any charge. If his
will is the law, all I have been saying amounts to nothing. But I have
endeavored to let your Lordships see that in no country upon the earth
is the will of a despot law. It may produce wicked, flagitious,
tyrannical acts; but in no country is it law.
The duty of a sovereign in cases of rebellion, as laid down in the
Hedaya, agrees with the general practice in India. It was usual, except
in cases of notorious injustice and oppression, whenever a rebellion or
a suspicion of a rebellion existed, to admonish the rebellious party and
persuade him to return to his duty. Causes of complaint were removed
and misunderstandings explained, and, to save the effusion of blood,
severe measures were not adopted until they were rendered indispensable.
This wise and provident law is or ought to be the law in all countries:
it was in fact the law in that country, but Mr. Hastings did not attend
to it. His unfortunate victim was goaded to revolt and driven from his
subjects, although he endeavored by message after message to reconcile
this cruel tyrant to him. He is told in reply, "You have shed the blood
of Englishmen, and I will never be reconciled to you." Your Lordships
will observe that the reason he gives for such an infernal determination
(for it cannot be justly qualified by any other word) is of a nature to
make tyranny the very foundation of our government. I do not say here
upon what occasion people may or may not resist; but surely, if ever
there was an occasion on which people, from love to their sovereign and
regard to their country, might take up arms, it was this. They saw a
tyrant violent in his demands and weak in his power. They saw their
prince imprisoned and insulted, after he had made every offer of
submission, and had laid his turban three times in the lap of his
oppressor. They saw him, instead of availing himself of the means he
possessed of cutting off his adversary, (for the life of Mr. Hastings
was entirely in his power,) betaking himself to flight. They then
thronged round him, took up arms in his defence, and shed the blood of
some of his insulters. Is this resistance, so excited, so provoked, a
plea for irreconcilable vengeance?
I must beg pardon for having omitted to lay before your Lordships in its
proper place a most extraordinary paper, which will show you in what
manner judicial inquiries are conducted, upon what grounds charges are
made, by what sort of evidence they are supported, and, in short, to
what perils the lives and fortunes of men are subjected in that country.
This paper is in the printed Minutes, page 1608. It was given in
agreeably to the retrograde order which they have established in their
judicial proceedings. It was produced to prove the truth of a charge of
rebellion which was made some months before the paper in evidence was
known to the accuser.
"_To the Honorable Warren Hastings._
"Sir,--About the month of November last, I communicated to Mr.
Markham the substance of a conversation said to have passed between
Rajah Cheyt Sing and Saadut Ali, and which was reported to me by a
person in whom I had some confidence. The mode of communicating this
intelligence to you I left entirely to Mr. Markham. In this
conversation, which was private, the Rajah and Saadut Ali were said
to have talked of Hyder Ali's victory over Colonel Baillie's
detachment, to have agreed that they ought to seize this opportunity
of consulting their own interest, and to have determined to watch
the success of Hyder's arms. Some days after this conversation was
said to have happened, I was informed by the same person that the
Rajah had received a message from one of the Begums at Fyzabad, (I
think it was from Sujah ul Dowlah's widow,) advising him not to
comply with the demands of government, and encouraging him to expect
support in case of his resisting. This also, I believe, I
communicated to Mr. Markham; but not being perfectly certain, I now
think it my duty to remove the possibility of your remaining
unacquainted with a circumstance which may not be unconnected with
the present conduct of the Rajah."
Here, then, is evidence of evidence given to Mr. Markham by Mr. Balfour,
from Lucknow, in the month of November, 1781, long after the transaction
at Benares. But what was this evidence? "I communicated," he says, "the
substance of a conversation said to have passed." Observe, _said_: not a
conversation that had passed to his knowledge or recollection, but what
his informant said had passed. He adds, this conversation was reported
to him by a person whom he won't name, but in whom, he says, he had some
confidence. This anonymous person, in whom he had put some confidence,
was not himself present at the conversation; he only reports to him that
it was _said_ by somebody else that such a conversation had taken place.
This conversation, which somebody told Colonel Balfour he had heard was
said by somebody to have taken place, if true, related to matters of
great importance; still the mode of its communication was left to Mr.
Markham, and that gentleman did not bring it forward till some months
after. Colonel Balfour proceeds to say,--"Some days after this
conversation was said to have happened," (your Lordships will observe it
is always, "was said to have happened,") "I was informed by the same
person that the Rajah had received a message from one of the Begums at
Fyzabad, (I think it was from Sujah ul Dowlah's widow,) advising him not
to comply with the demands of government, and encouraging him to expect
support in case of his resisting." He next adds,--"This also, I
believe," (observe, he says he is not quite sure of it,) "I communicated
to Mr. Markham; but not being perfectly certain," (of a matter the
immediate knowledge of which, if true, was of the highest importance to
his country,) "I now think it my duty to remove the possibility of your
remaining unacquainted with, a circumstance which may not be unconnected
with the present conduct of the Rajah."
Here is a man that comes with information long after the fact deposed
to, and, after having left to another the communication of his
intelligence to the proper authority, that other neglects the matter. No
letter of Mr. Markham's appears, communicating any such conversation to
Mr. Hastings: and, indeed, why he did not do so must appear very obvious
to your Lordships; for a more contemptible, ridiculous, and absurd story
never was invented. Does Mr. Balfour come forward and tell him who his
informant was? No. Does he say, "He was an informant whom I dare not
name, upon account of his great consequence, and the great confidence I
had in him"? No. He only says slightly, "I have some confidence in him."
It is upon this evidence of a reporter of what another is _said_ to have
_said_, that Mr. Hastings and his Council rely for proof, and have
thought proper to charge the Rajah, with having conceived rebellious
designs soon after the time when Mr. Hastings had declared his belief
that no such designs had been formed.
Mr. Hastings has done with his charge of rebellion what he did with his
declaration of arbitrary power: after he had vomited it up in one place,
he returns to it in another. He here declares (after he had recorded
his belief that no rebellion was ever intended) that Mr. Markham was in
possession of information which he might have believed, if it had been
communicated to him. Good heavens! when you review all these
circumstances, and consider the principles upon which this man was tried
and punished, what must you think of the miserable situation of persons
of the highest rank in that country, under the government of men who are
disposed to disgrace and ruin them in this iniquitous manner!
Mr. Balfour is in Europe, I believe. How comes it that he is not
produced here to tell your Lordships who was his informer, and what he
knows of the transaction? They have not produced him, but have thought
fit to rely upon this miserable, beggarly semblance of evidence, the
very production of which was a crime, when brought forward for the
purpose of giving color to acts of injustice and oppression. If you ask,
Who is this Mr. Balfour? He is a person who was a military collector of
revenue in the province of Rohilcund: a country now ruined and
desolated, but once the garden of the world. It was from the depth of
that horrible devastating system that he gave this ridiculous,
contemptible evidence, which if it can be equalled, I shall admit that
there is not one word we have said that you ought to attend to.
Your Lordships are now enabled to sum up the amount and estimate the
result of all this iniquity. The Rajah himself is punished, he is ruined
and undone; but the 500,000_l._ is not gained. He has fled his country;
but he carried his treasures with him. His forts are taken possession
of; but there was nothing found in them. It is the report of the
country, and is so stated by Mr. Hastings, that he carried away with him
in gold and silver to the value of about 400,000_l._; and thus that sum
was totally lost, even as an object of plunder, to the Company. The
author of the mischief lost his favorite object by his cruelty and
violence. If Mr. Hastings had listened to Cheyt Sing at first,--if he
had answered his letters, and dealt civilly with him,--if he had
endeavored afterwards to compromise matters,--if he had _told_ him what
his demands were,--if, even after the rebellion had broken out, he had
demanded and exacted a fine,--the Company would have gained 220,000_l._
at least, and perhaps a much larger sum, without difficulty. They would
not then have had 400,000_l._ carried out of the country by a tributary
chief, to become, as we know that sum has become, the plunder of the
Mahrattas and our other enemies. I state to you the account of the
profit and loss of tyranny: take it as an account of profit and loss;
forget the morality, forget the law, forget the policy; take it, I say,
as a matter of profit and loss. Mr. Hastings lost the subsidy; Mr.
Hastings lost the 220,000_l._ which was offered him, and more that he
might have got. Mr. Hastings lost it all; and the Company lost the
400,000_l._ which he meant to exact. It was carried from the British
dominions to enrich its enemies forever.
This man, my Lords, has not only acted thus vindictively himself, but he
has avowed the principle of revenge as a general rule of policy,
connected with the security of the British government in India. He has
dared to declare, that, if a native once draws his sword, he is not to
be pardoned; that you never are to forgive any man who has killed an
English soldier. You are to be implacable and resentful; and there is
no maxim of tyrants, which, upon account of the supposed weakness of
your government, you are not to pursue. Was this the conduct of the
Mogul conquerors of India? and must this _necessarily_ be the policy of
their Christian successors? I pledge myself, if called upon, to prove
the contrary. I pledge myself to produce, in the history of the Mogul
empire, a series of pardons and amnesties for rebellions, from its
earliest establishments, and in its most distant provinces.
I need not state to your Lordships what you know to be the true
principles of British policy in matters of this nature. When there has
been provocation, you ought to be ready to listen to terms of
reconciliation, even after war has been made. This you ought to do, to
show that you are placable; such policy as this would doubtless be of
the greatest benefit and advantage to you. Look to the case of Sujah
Dowlah. You had, in the course of a war with him, driven him from his
country; you had not left him in possession of a foot of earth in the
world. The Mogul was his sovereign, and, by his authority, it was in
your power to dispose of the vizierate, and of every office of state
which Sujah Dowlah held under the emperor: for he hated him mortally,
and was desirous of dispossessing him of everything. What did you do?
Though he had shed much English blood, you reëstablished him in all his
power, you gave him more than he before possessed; and you had no reason
to repent your generosity. Your magnanimity and justice proved to be the
best policy, and was the subject of admiration from one end of India to
the other. But Mr. Hastings had other maxims and other principles. You
are weak, he says, and therefore you ought never to forgive. Indeed, Mr.
Hastings never does forgive. The Rajah was weak, and he persecuted him;
Mr. Hastings was weak, and he lost his prey. He went up the country with
the rapacity, but not with the talons and beak, of a vulture. He went to
look for plunder; but he was himself plundered, the country was ravaged,
and the prey escaped.
After the escape of Cheyt Sing, there still existed in one corner of the
country some further food for Mr. Hastings's rapacity. There was a place
called Bidjegur, one of those forts which Mr. Hastings declared could
not be safely left in the possession of the Rajah; measures were
therefore taken to obtain possession of this place, soon after the
flight of its unfortunate proprietor. And what did he find in it? A
great and powerful garrison? No, my Lords: he found in it the wives and
family of the Rajah; he found it inhabited by two hundred women, and
defended by a garrison of eunuchs and a few feeble militia-men. This
fortress was supposed by him to contain some money, which he hoped to
lay hold of when all other means of rapacity had escaped him. He first
sends (and you have it on your minutes) a most cruel, most atrocious,
and most insulting message to these unfortunate women; one of whom, a
principal personage of the family, we find him in the subsequent
negotiation scandalizing in one minute, and declaring to be a woman of
respectable character in the next,--treating her by turns as a
prostitute and as an amiable woman, as best suited the purposes of the
hour. This woman, with two hundred of her sex, he found in Bidjegur.
Whatever money they had was their own property; and as such Cheyt Sing,
who had visited the place before his flight, had left it for their
support, thinking that it would be secure to them as their property,
because they were persons wholly void of guilt, as they must needs have
been. This money the Rajah might have carried off with him; but he left
it them, and we must presume that it was their property; and no attempt
was ever made by Mr. Hastings to prove otherwise. They had no other
property that could be found. It was the only means of subsistence for
themselves, their children, their domestics, and dependants, and for the
whole female part of that once illustrious and next to royal family.
But to proceed. A detachment of soldiers was sent to seize the forts
[fort?]. Soldiers are habitually men of some generosity; even when they
are acting in a bad cause, they do not wholly lose the military spirit.
But Mr. Hastings, fearing that they might not be animated with the same
lust of plunder as himself, stimulated them to demand the plunder of the
place, and expresses his hopes that no composition would be made with
these women, and that not one shilling of the booty would be allowed
them. He does not trust to their acting as soldiers who have their
fortunes to make; but he stimulates and urges them not to give way to
the generous passions and feelings of men.
He thus writes from Benares, the 22d of October, 1781, ten o'clock in
the morning. "I am this instant favored with yours of yesterday; mine to
you of the same date has before this time acquainted you with my
resolutions and sentiments respecting the Ranny. I think every demand
she has made to you, except that of safety and respect for her person,
is unreasonable. If the reports brought to me are true, your rejecting
her offers, or any negotiation with her, would soon obtain you
possession of the fort upon your own terms. I apprehend that she will
contrive to defraud the captors of a considerable part of the booty by
being suffered to retire without examination; but this is your
consideration, and not mine. I should be sorry that your officers and
soldiers lost any part of the reward to which they are so well entitled;
but I cannot make any objection, as you must be the best judge of the
expediency of the promised indulgence to the Ranny. What you have
engaged for I will certainly ratify; but as to permitting the Ranny to
hold the purgunnah of Hurluk, or any other in the zemindary, without
being subject to the authority of the zemindar, or any lands whatever,
or indeed making any conditions with her for a provision, I will never
consent to it."
My Lords, you have seen the principles upon which this man justifies his
conduct. Here his real nature, character, and disposition break out.
These women had been guilty of no rebellion; he never charged them with
any crime but that of having wealth; and yet you see with what ferocity
he pursues everything that belonged to the destined object of his cruel,
inhuman, and more than tragic revenge. "If," says he, "you have made an
agreement with them, and will insist upon it, I will keep it; but if you
have not, I beseech you not to make any. Don't give them anything;
suffer no stipulations whatever of a provision for them. The
capitulation I will ratify, provided it contains no article of future
provision for them." This he positively forbade; so that his
bloodthirsty vengeance would have sent out these two hundred innocent
women to starve naked in the world.
But he not only declares that the money found in the fort is the
soldiers', he adds, that he should be sorry, if they lost a shilling of
it. So that you have here a man not only declaring that the money was
theirs, directly contrary to the Company's positive orders upon other
similar occasions, and after he had himself declared that prize-money
was poison to soldiers, but directly inciting them to insist upon their
right to it.
A month had been allowed by proclamation for the submission of all
persons who had been in rebellion, which submission was to entitle them
to indemnity. But, my Lords, he endeavored to break the public faith
with these women, by inciting the soldiers to make no capitulation with
them, and thus depriving them of the benefit of the proclamation, by
preventing their voluntary surrender.
[_Mr. Burke here read the proclamation._]
From the date of this proclamation it appears that the surrender of the
fort was clearly within the time given to those who had been guilty of
the most atrocious acts of rebellion to repair to their homes and enjoy
an indemnity. These women had never quitted their homes, nor had they
been charged with rebellion, and yet they were cruelly excluded from the
general indemnity; and after the army had taken unconditional possession
of the fort, they were turned out of it, and ordered to the quarters of
the commanding officer, Major Popham. This officer had received from Mr.
Hastings a power to rob them, a power to plunder them, a power to
distribute the plunder, but no power to give them any allowance, nor any
authority even to receive them.
In this disgraceful affair the soldiers showed a generosity which Mr.
Hastings neither showed nor would have suffered, if he could have
prevented it. They agreed amongst themselves to give to these women
three lacs of rupees, and some trifle more; and the rest was divided as
a prey among the army. The sum found in the fort was about 238,000_l._,
not the smallest part of which was in any way proved to be Cheyt Sing's
property, or the property of any person but the unfortunate women who
were found in the possession of it.
The plunder of the fort being thus given to the soldiers, what does Mr.
Hastings next do? He is astonished and stupefied to find so much
unprofitable violence, so much tyranny, and so little pecuniary
advantage,--so much bloodshed, without any profit to the Company. He
therefore breaks his faith with the soldiers; declares, that, having no
right to the money, they must refund it to the Company; and on their
refusal, he instituted a suit against them. With respect to the three
lacs of rupees, or 30,000_l._, which was to be given to these women,
have we a scrap of paper to prove its payment? is there a single receipt
or voucher to verify their having received one sixpence of it? I am
rather inclined to think that they did receive it, or some part of it;
but I don't know a greater crime in public officers than to have no kind
of vouchers for the disposal of any large sums of money which pass
through their hands: but this, my Lords, is the great vice of Mr.
Hastings's government.
I have briefly taken notice of the claim which Mr. Hastings thought
proper to make, on the part of the Company, to the treasure found in the
fort of Bidjegur, after he had instigated the army to claim it as the
right of the captors. Your Lordships will not be at a loss to account
for this strange and barefaced inconsistency. This excellent Governor
foresaw that he would have a bad account of this business to give to the
contractors in Leadenhall Street, who consider laws, religion, morality,
and the principles of state policy of empires as mere questions of
profit and loss. Finding that he had dismal accounts to give of great
sums expended without any returns, he had recourse to the only expedient
that was left him. He had broken his faith with the ladies in the fort,
by not suffering his officers to grant them that indemnity which his
proclamation offered. Then, finding that the soldiers had taken him at
his word, and appropriated the treasure to their own use, he next broke
his faith with them. A constant breach of faith is a maxim with him. He
claims the treasure for the Company, and institutes a suit before Sir
Elijah Impey, who gives the money to the Company, and not to the
soldiers. The soldiers appeal; and since the beginning of this trial, I
believe even very lately, it has been decided by the Council that the
letter of Mr. Hastings was not, as Sir Elijah Impey pretended, a mere
private letter, because it had "Dear Sir," in it, but a public order,
authorizing the soldiers to divide the money among themselves.
Thus 200,000_l._ was distributed among the soldiers; 400,000_l._ was
taken away by Cheyt Sing, to be pillaged by all the Company's enemies
through whose countries he passed; and so ended one of the great
sources from which this great financier intended to supply the
exigencies of the Company, and recruit their exhausted finances.
By this proceeding, my Lords, the national honor is disgraced, all the
rules of justice are violated, and every sanction, human and divine,
trampled upon. We have, on one side, a country ruined, a noble family
destroyed, a rebellion raised by outrage and quelled by bloodshed, the
national faith pledged to indemnity, and that indemnity faithlessly
withheld from helpless, defenceless women; while the other side of the
picture is equally unfavorable. The East India Company have had their
treasure wasted, their credit weakened, their honor polluted, and their
troops employed against their own subjects, when their services were
required against foreign enemies.
My Lords, it only remains for me, at this time, to make a few
observations upon some proceedings of the prisoner respecting the
revenue of Benares. I must first state to your Lordships that in the
year 1780 he made a demand upon that country, which, by his own account,
if it had been complied with, would only have left 23,000_l._ a year for
the maintenance of the Rajah and his family. I wish to have this account
read, for the purpose of verifying the observations which I shall have
to make to your Lordships.
[_Here the account was read._]
I must now observe to your Lordships, that Mr. Markham and Mr. Hastings
have stated the Rajah's net revenue at forty-six lacs: but the accounts
before you state it at forty lacs only. Mr. Hastings had himself
declared that he did not think the country could safely yield more, and
that any attempt to extract more would be ruinous.
Your Lordships will observe that the first of these estimates is
unaccompanied with any document whatever, and that it is contradicted by
the papers of receipt and the articles of account, from all of which it
appears that the country never yielded more than forty lacs during the
time that Mr. Hastings had it in his possession; and you may be sure he
squeezed as much out of it as he could. He had his own Residents,--first
Mr. Markham, then Mr. Fowke, then Mr. Grant; they all went up with a
design to make the most of it. They endeavored to do so; but they never
could screw it up to more than forty lacs by all the violent means which
they employed. The ordinary subsidy, as paid at Calcutta by the Rajah,
amounted to twenty-two lacs; and it is therefore clearly proved by this
paper, that Mr. Hastings's demand of fifty lacs (500,000_l._), joined to
the subsidies, was more than the whole revenue which the country could
yield. What hoarded treasure the Rajah possessed, and which Mr. Hastings
says he carried off with him, does not appear. That it was any
considerable sum is more than Mr. Hastings knows, more than can be
proved, more than is probable. He had not, in his precipitate flight,
any means, I think, of carrying away a great sum. It further appears
from these accounts, that, after the payment of the subsidy, there would
only have been left 18,000_l._ a year for the support of the Rajah's
family and establishments.
Your Lordships have now a standard, not a visionary one, but a standard
verified by accurate calculation and authentic accounts. You may now
fairly estimate the avarice and rapacity of this man, who describes
countries to be enormously rich in order that he may be justified in
pillaging them. But however insatiable the prisoner's avarice may be, he
has other objects in view, other passions rankling in his heart, besides
the lust of money. He was not ignorant, and we have proved it by his own
confession, that his pretended expectation of benefit to the Company
could not be realized; but he well knew that by enforcing his demands he
should utterly and effectually ruin a man whom he mortally hated and
abhorred,--a man who could not, by any sacrifices offered to the
avarice, avert the cruelty of his implacable enemy. As long as truth
remains, as long as figures stand, as long as two and two are four, as
long as there is mathematical and arithmetical demonstration, so long
shall his cruelty, rage, ravage, and oppression remain evident to an
astonished posterity.
I shall undertake, my Lords, when this court meets again, to develop the
consequences of this wicked proceeding. I shall then show you that that
part of the Rajah's family which he left behind him, and which Mr.
Hastings pretended to take under his protection, was also ruined,
undone, and destroyed; and that the once beautiful country of Benares,
which he has had the impudence to represent as being still in a
prosperous condition, was left by him in such a state as would move pity
in any tyrant in the world except the one who now stands before you.
FOOTNOTES:
[98] Hedaya, Vol. II. p. 621.
SPEECH
IN
GENERAL REPLY.
THIRD DAY: TUESDAY, JUNE 3, 1794.
My Lords,--We are called, with an awful voice, to come forth and make
good our charge against the prisoner at your bar; but as a long time has
elapsed since your Lordships heard that charge, I shall take the liberty
of requesting my worthy fellow Manager near me to read that part to your
Lordships which I am just now going to observe upon, that you may be the
better able to apply my observations to the letter of the charge.
[_Mr. Wyndham reads._]
"That the said Warren Hastings, having, as aforesaid, expelled the said
Cheyt Sing from his dominions, did, of his own usurped authority, and
without any communication with or any approbation given by the other
members of the Council, nominate and appoint Rajah Mehip Narrain to the
government of the provinces of Benares, and did appoint his father,
Durbege Sing, as administrator of his authority, and did give to the
British Resident, William Markham, a controlling authority over both;
and did farther abrogate and set aside all treaties and agreements which
subsisted between the state of Benares and the British nation; and did
arbitrarily and tyrannically, of his mere authority, raise the tribute
to the sum of four hundred thousand pounds sterling, or thereabouts; did
further wantonly and illegally impose certain oppressive duties upon
goods and merchandise, to the great injury of trade and ruin of the
provinces; and did farther dispose of, as his own, the property within
the said provinces, by granting the same, or parts, thereof, in pensions
to such persons as he thought fit.
"That the said Warren Hastings did, some time in the year 1782, enter
into a clandestine correspondence with William Markham, Esquire, the
then Resident at Benares, which said Markham had been by him, the said
Warren Hastings, obtruded into the said office, contrary to the positive
orders of the Court of Directors; and, in consequence of the
representations of the said Markham, did, under pretence that the new
excessive rent or tribute was in arrear, and that the affairs of the
provinces were likely to fall into confusion, authorize and impower him,
by his own private authority, to remove the said Durbege Sing from his
office and deprive him of his estate.
"That the said Durbege Sing was, by the private orders and authorities
given by the said Warren Hastings, and in consequence of the
representations aforesaid, violently thrown into prison, and cruelly
confined therein, under pretence of the non-payment of the arrears of
the tribute aforesaid.
"That the widow of Bulwant Sing, and the Rajah Mehip Narrain, did
pointedly accuse the said Markham of being the sole cause of any delay
in the payment of the tribute aforesaid, and did offer to prove the
innocence of the said Durbege Sing, and also to prove that the faults
ascribed to him were solely the faults of the said Markham; yet the said
Warren Hastings did pay no regard whatever to the said representations,
nor make any inquiry into the truth of the same, but did accuse the said
widow of Bulwant Sing and the Rajah aforesaid of gross presumption for
the same; and, listening to the representations of the person accused,
(viz., the Resident Markham,) did continue to confine the said Durbege
Sing in prison, and did invest the Resident Markham with authority to
bestow his office upon whomsoever he pleased.
"That the said Markham did bestow the said office of administrator of
the provinces of Benares upon a certain person named Jagher Deo Seo,
who, in order to gratify the arbitrary demands of the said Warren
Hastings, was obliged greatly to distress and harass the unfortunate
inhabitants of the said provinces.
"That the said Warren Hastings did, some time in the year 1784, remove
the said Jagher Deo Seo from the said office, under pretence of certain
irregularities and oppressions; which irregularities and oppressions are
solely imputable to him, the said Warren Hastings.
"That the consequences of all these violent changes and arbitrary acts
were the total ruin and desolation of the country, and the flight of the
inhabitants: the said Warren Hastings having found every place abandoned
at his approach, even by the officers of the very government which he
established, and seeing nothing but traces of devastation in every
village, the provinces in effect without a government, the
administration misconducted, the people oppressed, trade discouraged,
and the revenue in danger of a rapid decline.
"All which destruction, devastation, oppression, and ruin are solely
imputable to the abovementioned and other arbitrary, illegal, unjust,
and tyrannical acts of him, the said Warren Hastings, who, by all and
every one of the same, was and is guilty of high crimes and
misdemeanors."
[_Mr. Burke proceeded._]
My Lords, you have heard the charge; and you are now going to see the
prisoner at your bar in a new point of view. I will now endeavor to
display him in his character of a legislator in a foreign land, not
augmenting the territory, honor, and power of Great Britain, and
bringing the acquisition under the dominion of law and liberty, but
desolating a flourishing country, that to all intents and purposes was
our own,--a country which we had conquered from freedom, from
tranquillity, order, and prosperity, and submitted, through him, to
arbitrary power, misrule, anarchy, and ruin. We now see the object of
his corrupt vengeance utterly destroyed, his family driven from their
home, his people butchered, his wife and all the females of his family
robbed and dishonored in their persons, and the effects which husband
and parents had laid up in store for the subsistence of their families,
all the savings of provident economy, distributed amongst a rapacious
soldiery. His malice is victorious. He has well avenged, in the
destruction of this unfortunate family, the Rajah's intended visit to
General Clavering; he has well avenged the suspected discovery of his
bribe to Mr. Francis.
"Thou hast it now, King, Cawdor, Glamis, all!"
Let us see, my Lords, what use he makes of this power,--how he justifies
the bounty of Fortune, bestowing on him this strange and anomalous
conquest. Anomalous I call it, my Lords, because it was the result of no
plan in the cabinet, no operation in the field. No act or direction
proceeded from him, the responsible chief, except the merciless orders,
and the grant to the soldiery. He lay skulking and trembling in the fort
of Chunar, while the British soldiery entitled themselves to the plunder
which he held out to them. Nevertheless, my Lords, he conquers; the
country is his own; he treats it as his own. Let us, therefore, see how
this successor of Tamerlane, this emulator of Genghis Khân, governs a
country conquered by the talents and courage of others, without
assistance, guide, direction, or counsel given by himself.
My Lords, I will introduce his first act to your Lordships' notice in
the words of the charge.
"The said Warren Hastings did, some time in the year 1782, enter into a
clandestine correspondence with William Markham, Esquire, the then
Resident at Benares; which said Markham had been by him, the said Warren
Hastings, obtruded into the said office, contrary to the positive orders
of the Court of Directors."
This unjustifiable obtrusion, this illegal appointment, shows you at the
very outset that he defies the laws of his country,--most positively and
pointedly defies them. In attempting to give a reason for this defiance,
he has chosen to tell a branch of the legislature from which originated
the act which wisely and prudently ordered him to pay implicit obedience
to the Court of Directors, that he removed Mr. Fowke from Benares,
contrary to the orders of the Court, on political grounds; because, says
he, "I thought it necessary the Resident there should be a man of my own
nomination and confidence. I avow the principle, and think no government
can subsist without it. The punishment of the Rajah made no part of my
design in Mr. Fowke's removal or Mr. Markham's appointment, nor was his
punishment an object of my contemplation at the time I removed Mr. Fowke
to appoint Mr. Markham: an appointment of my own choice, and a signal to
notify the restoration of my own authority; as I had before removed Mr.
Fowke and appointed Mr. Graham for the same purpose."
Here, my Lords, he does not even pretend that he had any view whatever,
in this appointment of Mr. Markham, but to defy the laws of his country.
"I must," says he, "have a man of my own nomination, because it is a
signal to notify the restoration of my own authority, as I had before
removed Mr. Fowke for the same purpose."
I must beg your Lordships to keep in mind that the greater part of the
observations with which I shall trouble you have a reference to the
_principles_ upon which this man acts; and I beseech you to remember
always that you have before you a question and an issue of law; I
beseech you to consider what it is that you are disposing of,--that you
are not merely disposing of this man and his cause, but that you are
disposing of the laws of your country.
You, my Lords, have made, and we have made, an act of Parliament in
which the Council at Calcutta is vested with a special power, distinctly
limited and defined. He says, "My authority is absolute. I defy the
orders of the Court of Directors, because it is necessary for me to show
that I can disregard them, as a signal of my own authority." He supposes
his authority gone while he obeys the laws; but, says he, "the moment I
got rid of the bonds and barriers of the laws," (as if there had been
some act of violence and usurpation that had deprived him of his
rightful powers,) "I was restored to my own authority." What is this
authority to which he is restored? Not an authority vested in him by the
East India Company; not an authority sanctioned by the laws of this
kingdom. It is neither of these, but the authority of Warren Hastings;
an inherent divine right, I suppose, which he has thought proper to
claim as belonging to himself; something independent of the laws,
something independent of the Court of Directors, something independent
of his brethren of the Council. It is "my own authority."
And what is the signal by which you are to know when this authority is
restored? By his obedience to the Court of Directors?--by his attention
to the laws of his country?--by his regard to the rights of the people?
No, my Lords, no: the notification of the restoration of this authority
is a formal disobedience of the orders of the Court of Directors. When
you find the laws of the land trampled upon, and their appointed
authority despised, then you may be sure that the authority of the
prisoner is reëstablished.
There is, my Lords, always a close connection between vices of every
description. The man who is a tyrant would, under some other
circumstances, be a rebel; and he that is a rebel would become a tyrant.
They are things which originally proceed from the same source. They owe
their birth to the wild, unbridled lewdness of arbitrary power. They
arise from a contempt of public order, and of the laws and institutions
which curb mankind. They arise from a harsh, cruel, and ferocious
disposition, impatient of the rules of law, order, and morality: and
accordingly, as their relation varies, the man is a tyrant, if a
superior, a rebel, if an inferior. But this man, standing in a middle
point between the two relations, the superior and inferior, declares
himself at once both a rebel and a tyrant. We therefore naturally
expect, that, when he has thrown off the laws of his country, he will
throw off all other authority. Accordingly, in defiance of that
authority to which he owes his situation, he nominates Mr. Markham to
the Residency at Benares, and therefore every act of Mr. Markham is his.
He is responsible,--doubly responsible to what he would have been, if in
the ordinary course of office he had named this agent. Every governor is
responsible for the misdemeanors committed under his legal authority for
which he does not punish the delinquent; but the prisoner is doubly
responsible in this case, because he assumed an illegal authority, which
can be justified only, if at all, by the good resulting from the
assumption.
Having now chosen his principal instrument and his confidential and sole
counsellor, having the country entirely in his hand, and every obstacle
that could impede his course swept out of the arena, what does he do
under these auspicious circumstances? You would imagine, that, in the
first place, he would have sent down to the Council at Calcutta a
general view of his proceedings, and of their consequences, together
with a complete statement of the revenue; that he would have recommended
the fittest persons for public trusts, with such other measures as he
might judge to be most essential to the interest and honor of his
employers. One would have imagined he would have done this, in order
that the Council and the Court of Directors might have a clear view of
the whole existing system, before he attempted to make a permanent
arrangement for the administration of the country. But, on the contrary,
the whole of his proceedings is clandestinely conducted; there is not
the slightest communication with the Council upon the business, till he
had determined and settled the whole. Thus the Council was placed in a
complete dilemma,--either to confirm all his wicked and arbitrary acts,
(for such we have proved them to be,) or to derange the whole
administration of the country again, and to make another revolution as
complete and dreadful as that which he had made.
The task which the Governor-General had imposed upon himself was, I
admit, a difficult one; but those who pull down important ancient
establishments, who wantonly destroy modes of administration and public
institutions under which a country has prospered, are the most
mischievous, and therefore the wickedest of men. It is not a reverse of
fortune, it is not the fall of an individual, that we are here talking
of. We are, indeed, sorry for Cheyt Sing and Durbege Sing, as we should
be sorry for any individual under similar circumstances.
It is wisely provided in the constitution of our heart, that we should
interest ourselves in the fate of great personages. They are therefore
made everywhere the objects of tragedy, which addresses itself directly
to our passions and our feelings. And why? Because men of great place,
men of great rank, men of great hereditary authority, cannot fall
without a horrible crash upon all about them. Such towers cannot tumble
without ruining their dependent cottages.
The prosperity of a country, that has been distressed by a revolution
which has swept off its principal men, cannot be reëstablished without
extreme difficulty. This man, therefore, who wantonly and wickedly
destroyed the existing government of Benares, was doubly bound to use
all possible care and caution in supplying the loss of those
institutions which he had destroyed, and of the men whom he had driven
into exile. This, I say, he ought to have done. Let us now see what he
really did do.
He set out by disposing of all the property of the country as if it was
his own. He first confiscated the whole estates of the _Baboos_, the
great nobility of the country, to the amount of six lacs of rupees. He
then distributed the lands and revenue of the country according to his
own pleasure; and as he had seized the lands without our knowing why or
wherefore, so the portion which he took away from some persons he gave
to others, in the same arbitrary manner, and without any assignable
reason.
When we were inquiring what jaghires Mr. Hastings had thought proper to
grant, we found, to our astonishment, (though it is natural that his
mind should take this turn,) that he endowed several charities with
jaghires. He gave a jaghire to some Brahmins to pray for the perpetual
prosperity of the Company, and others to procure the prayers of the same
class of men for himself. I do not blame his Gentoo piety, when I find
no Christian piety in the man: let him take refuge in any superstition
he pleases. The crime we charge is his having distributed the lands of
others at his own pleasure. Whether this proceeded from piety, from
ostentation, or from any other motive, it matters not. We contend that
he ought not to have distributed such land at all,--that he had no
right to do so; and consequently, the gift of a single acre of land, by
his own private will, was an act of robbery, either from the public or
some individual.
When he had thus disturbed the landed property of Benares, and
distributed it according to his own will, he thought it would be proper
to fix upon a person to govern the country; and of this person he
himself made the choice. It does not appear that the people could have
lost, even by the revolt of Cheyt Sing, the right which was inherent in
them to be governed by the lawful successor of his family. We find,
however, that this man, by his own authority, by the arbitrary exercise
of his own will and fancy, did think proper to nominate a person to
succeed the Rajah who had no legal claims to the succession. He made
choice of a boy about nineteen years old; and he says he made that
choice upon the principle of this boy's being descended from Bulwant
Sing by the female line. But he does not pretend to say that he was the
proper and natural heir to Cheyt Sing; and we will show you the direct
contrary. Indeed, he confesses the contrary himself; for he argues, in
his defence, that, when a new system was to be formed with the successor
of Cheyt Sing who was not his heir, such successor had no claim of
right.
But perhaps the want of right was supplied by the capacity and fitness
of the person who was chosen. I do not say that this does or can for one
moment supersede the positive right of another person; but it would
palliate the injustice in some degree. Was there in this case any
palliative matter? Who was the person chosen by Mr. Hastings to succeed
Cheyt Sing? My Lords, the person chosen was a minor: for we find the
prisoner at your bar immediately proceeded to appoint him a guardian.
This guardian he also chose by his own will and pleasure, as he himself
declares, without referring to any particular claim or usage,--without
calling the Pundits to instruct him, upon whom, by the Gentoo laws, the
guardianship devolved.
I admit, that, in selecting a guardian, he did not, in one respect, act
improperly; for he chose the boy's father, and he could not have chosen
a better guardian for his person. But for the administration of his
government qualities were required which this man did not possess. He
should have chosen a man of vigor, capacity, and diligence, a man fit to
meet the great difficulties of the situation in which he was to be
placed.
Mr. Hastings, my Lords, plainly tells you that he did not think the
man's talents to be extraordinary, and he soon afterwards says that he
had a great many incapacities. He tells you that he has a doubt whether
he was capable of realizing those hopes of revenue which he (Mr.
Hastings) had formed. Nor can this be matter of wonder, when we consider
that he had ruined and destroyed the ancient system, the whole scheme
and tenor of public offices, and had substituted nothing for them but
his own arbitrary will. He had formed a plan of an entire new system, in
which the practical details had no reference to the experience and
wisdom of past ages. He did not take the government as he found it; he
did not take the system of offices as it was arranged to his hand; but
he dared to make the wicked and flagitious experiment which I have
stated,--an experiment upon the happiness of a numerous people, whose
property he had usurped and distributed in the manner which has been
laid before your Lordships. The attempt failed, and he is responsible
for the consequences.
How dared he to make these experiments? In what manner can he be
justified for playing fast and loose with the dearest interests, and
perhaps with the very existence, of a nation? Attend to the manner in
which he justifies himself, and you will find the whole secret let out.
"The easy accumulation of too much wealth," he says, "had been Cheyt
Sing's ruin; it had buoyed him up with extravagant and ill-founded
notions of independence, which I very much wished to discourage in the
future Rajah. Some part, therefore, of the superabundant produce in the
country I turned into the coffers of the sovereign by an augmentation of
the tribute."--Who authorized him to make any augmentation of the
tribute? But above all, who authorized him to augment it upon this
principle?--"I must take care the tributary prince does not grow too
rich; if he gets rich, he will get proud."--This prisoner has got a
scale like that in the almanac,--"War begets poverty, poverty peace,"
and so on. The first rule that he lays down is, that he will keep the
new Rajah in a state of poverty; because, if he grows rich, he will
become proud, and behave as Cheyt Sing did. You see the ground,
foundation, and spirit of the whole proceeding. Cheyt Sing was to be
robbed. Why? Because he is too rich. His successor is to be reduced to a
miserable condition. Why? Lest he should grow rich and become
troublesome. The whole of his system is to prevent men from growing
rich, lest, if they should grow rich, they should grow proud, and seek
independence. Your Lordships see that in this man's opinion riches must
beget pride. I hope your Lordships will never be so poor as to cease to
be proud; for, ceasing to be proud, you will cease to be independent.
Having resolved that the Rajah should not grow rich, for fear he should
grow proud and independent, he orders him to pay forty lacs of rupees,
or 400,000_l._, annually to the Company. The tribute had before been
250,000_l._, and he all at once raised it to 400,000_l._ Did he
previously inform the Council of these intentions? Did he inform them of
the amount of the gross collections of the country, from any properly
authenticated accounts procured from any public office?
I need not inform your Lordships, that it is a serious thing to draw out
of a country, instead of 250,000_l._, an annual tribute of 400,000_l._
There were other persons besides the Rajah concerned in this enormous
increase of revenue. The whole country is interested in its resources
being fairly estimated and assessed; for, if you overrate the revenue
which it is supposed to yield to the great general collector, you
necessitate him to overrate every under-collector, and thereby instigate
them to harass and oppress the people. It is upon these grounds that we
have charged the prisoner at your bar with having acted arbitrarily,
illegally, unjustly, and tyrannically: and your Lordships will bear in
mind that these acts were done by his sole authority, which authority we
have shown to have been illegally assumed.
My Lords, before he took the important steps which I have just stated,
he consulted no one but Mr. Markham, whom he placed over the new Rajah.
The Rajah was only nineteen years old: but Mr. Markham undoubtedly had
the advantage of him in this respect, for he was twenty-one. He had also
the benefit of five months' experience of the country: an abundant
experience, to be sure, my Lords, in a country where it is well known,
from the peculiar character of its inhabitants, that a man cannot
anywhere put his foot without placing it upon some trap or mine, until
he is perfectly acquainted with its localities. Nevertheless, he puts
the whole country and a prince of nineteen, as appears from the
evidence, into the hands of Mr. Markham, a man of twenty-one. We have no
doubt of Mr. Markham's capacity; but he could have no experience in a
country over which he possessed a general controlling power. Under these
circumstances, we surely shall not wonder, if this young man fell into
error. I do not like to treat harshly the errors into which a very young
person may fall: but the man who employs him, and puts him into a
situation for which he has neither capacity nor experience, is
responsible for the consequences of such an appointment; and Mr.
Hastings is doubly responsible in this case, because he placed Mr.
Markham as Resident merely to show that he defied the authority of the
Court of Directors.
But, my Lords, let us proceed. We find Mr. Hastings resolved to exact
forty lacs from the country, although he had no proof that such a
tribute could be fairly collected. He next assigns to this boy, the
Rajah, emoluments amounting to about 60,000_l._ a year. Let us now see
upon what grounds he can justify the assignment of these emoluments. I
can perceive none but such as are founded upon the opinion of its being
necessary to the support of the Rajah's dignity. Now, when Mr. Markham,
who is the sole ostensible actor in the management of the new Rajah, as
he had been a witness to the deposition of the former, comes before you
to give an account of what he thought of Cheyt Sing, who appears to have
properly supported the dignity of his situation, he tells you that about
a lac or a lac and a half (10,000_l._ or 15,000_l._) a year was as much
as Cheyt Sing could spend. And yet this young creature, settled in the
same country, and who was to pay 400,000_l._ a year, instead of
250,000_l._, tribute to the Company, was authorized by Mr. Hastings to
collect and reserve to his own use 60,000_l._ out of the revenue. That
is to say, he was to receive four times as much as was stated by Mr.
Hastings, on Mr. Markham's evidence, to have been necessary to support
him.
Your Lordships tread upon corruption everywhere. Why was such a large
revenue given to the young Rajah to support his dignity, when, as they
say, Cheyt Sing did not spend above a lac and half in support of
his,--though it is known he had great establishments to maintain, that
he had erected considerable buildings adorned with fine gardens, and,
according to them, had made great preparations for war?
We must at length imagine that they knew the country could bear the
impost imposed upon it. I ask, How did they know this? We have proved to
you, by a paper presented here by Mr. Markham, that the net amount of
the collections was about 360,000_l._ This is their own account, and was
made up, as Mr. Markham says, by one of the clerks of Durbege Sing,
together with his Persian moonshee, (a very fine council to settle the
revenues of the kingdom!) in his private house. And with this account
before them, they have dared to impose upon the necks of that unhappy
people a tribute of 400,000_l._, together with an income for the Rajah
of 60,000_l._ These sums the Naib, Durbege Sing, was bound to furnish,
and left to get them as he could. Your Lordships will observe that I
speak of the net proceeds of the collections. We have nothing to do with
the gross amount. We are speaking of what came to the public treasury,
which was no more than I have stated; and it was out of the public
treasury that these payments were to be made, because there could be no
other honest way of getting the money.
But let us now come to the main point, which is to ascertain what sums
the country could really bear. Mr. Hastings maintains (whether in the
speech of his counsel or otherwise I do not recollect) that the revenue
of the country was 400,000_l._, that it constantly paid that sum, and
flourished under the payment. In answer to this, I refer your Lordships,
first, to Mr. Markham's declaration, and the Wassil Baakee, which is in
page 1750 of the printed Minutes. I next refer your Lordships to Mr.
Duncan's Reports, in page 2493. According to Mr. Duncan's public
estimate of the revenue of Benares, the net collections of the very year
we are speaking of, when Durbege Sing had the management, and when Mr.
Markham, his Persian moonshee, and a clerk in his private house, made
their estimates without any documents, or with whatever documents, or
God only knows, for nothing appears on the record of the
transaction,--the collections yielded in that year but 340,000_l._, that
is, 20,000_l._ less than Mr. Markham's estimate. But take it which way
you will, whether you take it at Mr. Markham's 360,000_l._, or at Mr.
Duncan's 340,000_l._, your Lordships will see, that, after reserving
60,000_l._ for his own private expenses, the Rajah could not realize a
sum nearly equal to the tribute demanded.
Your Lordships have also in evidence before you an account of the
produce of the country for I believe full five years after this period,
from which it appears that it never realized the forty lacs, or anything
like it,--yielding only thirty-seven and thirty-nine lacs, or
thereabouts, which is 20,000_l._ short of Mr. Markham's estimate, and
160,000_l._ short of Mr. Hastings's. On what data could the prisoner at
your bar have formed this estimate? Where were all the clerks and
mutsuddies, where were all the men of business in Benares, who could
have given him complete information upon the subject? We do not find the
trace of any of them; all our information is Mr. Markham's moonshee, and
some clerk of Durbege Sing's employed in Mr. Markham's private
counting-house, in estimating revenues of a country.
The disposable revenue was still further reduced by the jaghires which
Mr. Hastings granted, but to what amount does not appear. He mentions
the increase in the revenue by the confiscation of the estates of the
Baboos, who had been in rebellion. This he rates at six lacs. But we
have inspected the accounts, we have examined them with that sedulous
attention which belongs to that branch of the legislature that has the
care of the public revenues, and we have not found one trace of this
addition. Whether these confiscations were ever actually made remains
doubtful; but if they were made, the application or the receipt of the
money they yielded does not appear in any account whatever. I leave your
Lordships to judge of this.
But it may be said that Hastings might have been in an error. If he was
in an error, my Lords, his error continued an extraordinary length of
time. The error itself was also extraordinary in a man of business: it
was an error of account. If his confidential agent, Mr. Markham, had
originally contributed to lead him into the error, he soon perceived it.
He soon informed Mr. Hastings that his expectations were erroneous, and
that he had overrated the country. What, then, are we to think of his
persevering in this error? Mr. Hastings might have formed extravagant
and wild expectations, when he was going up the country to plunder; for
we allow that avarice may often overcalculate the hoards that it is
going to rob. If a thief is going to plunder a banker's shop, his
avarice, when running the risk of his life, may lead him to imagine
there is more money in the shop than there really is. But when this man
was in possession of the country, how came he not to know and understand
the condition of it better? In fact, he was well acquainted with it; for
he has declared it to be his opinion that forty lacs was an overrated
calculation, and that the country could not continue to pay this tribute
at the very time he was imposing it. You have this admission in page 294
of the printed Minutes; but in the very face of it he says, if the Rajah
will exert himself, and continue for some years the regular payment, he
will then grant him a remission. Thus the Rajah was told, what he well
knew, that he was overrated, but that at some time or another he was to
expect a remission. And what, my Lords, was the condition upon which he
was to obtain this promised indulgence? The punctual payment of that
which Mr. Hastings declares he was not able to pay,--and which he could
not pay without ruining the country, betraying his own honor and
character, and acting directly contrary to the duties of the station in
which Mr. Hastings had placed him. Thus this unfortunate man was
compelled to have recourse to the most rigorous exaction, that he might
be enabled to satisfy the exorbitant demand which had been made upon
him.
But let us suppose that the country was able to afford the sum at which
it was assessed, and that nothing was required but vigor and activity in
the Rajah. Did Mr. Hastings endeavor to make his strength equal to the
task imposed on him? No: the direct contrary. In proportion as he
augmented the burdens of this man, in just that proportion he took away
his strength and power of supporting these burdens. There was not one of
the external marks of honor which attended the government of Cheyt Sing
that he did not take away from the new Rajah; and still, when this new
man came to his new authority, deprived of all external marks of
consequence, and degraded in the opinion of his subjects, he was to
extort from his people an additional revenue, payable to the Company, of
fifteen lacs of rupees more than was paid by the late Rajah in all the
plenitude of undivided authority. To increase this difficulty still
more, the father and guardian of this inexperienced youth was a man who
had no credit or reputation in the country. This circumstance alone was
a sufficient drawback from the weight of his authority; but Mr. Hastings
took care that he should be divested of it altogether; for, as our
charge states, he placed him under the immediate direction of Mr.
Markham, and consequently Mr. Markham was the governor of the country.
Could a man with a reduced, divided, contemptible authority venture to
strike such bold and hardy strokes as would be efficient without being
oppressive? Could he or any other man, thus bound and shackled, execute
such vigorous and energetic measures as were necessary to realize such
an enormous tribute as was imposed upon this unhappy country?
My Lords, I must now call your attention to another circumstance, not
mentioned in the charge, but connected with the appointment of the new
Rajah, and of his Naib, Durbege Sing, and demonstrative of the unjust
and cruel treatment to which they were exposed. It appears from a letter
produced here by Mr. Markham, (upon which kind of correspondence I shall
take the liberty to remark hereafter,) that the Rajah lived in perpetual
apprehension of being removed, and that a person called Ussaun Sing was
intended as his successor. Mr. Markham, in one part of his
correspondence, tells you that the Rajah did not intend to hold the
government any longer. Why? Upon a point of right, namely, that he did
not possess it upon the same advantageous terms as Cheyt Sing; but he
tells you in another letter, (and this is a much better key to the whole
transaction,) that he was in dread of that Ussaun Sing whom I have just
mentioned. This man Mr. Hastings kept ready to terrify the Rajah; and
you will, in the course of these transactions, see that there is not a
man in India, of any consideration, against whom Mr. Hastings did not
keep a kind of pretender, to keep him in continual awe. This Ussaun
Sing, whom Mr. Hastings brought up with him to Benares, was dreaded by
Cheyt Sing not less than by his successor. We find that he was at first
nominated Naib or acting governor of the country, but had never been put
in actual possession of this high office, and Durbege Sing was appointed
to it. Although Ussaun Sing was thus removed, he continued his
pretensions, and constantly solicited the office. Thus the poor man
appointed by Mr. Hastings, and actually in possession, was not only
called upon to perform tasks beyond his strength, but was overawed by
Mr. Markham, and terrified by Ussaun Sing, (the mortal enemy of the
family,) who, like an accusing fiend, was continually at his post, and
unceasingly reiterating his accusations. This Ussaun Sing was, as Mr.
Markham tells you, one of the causes of the Rajah's continued dejection
and despondency. But it does not appear that any of these circumstances
were ever laid before the Council; the whole passed between Mr. Hastings
and Mr. Markham.
Mr. Hastings having by his arbitrary will thus disposed of the revenue
and of the landed property of Benares, we will now trace his further
proceedings and their effects. He found the country most flourishing in
agriculture and in trade; but not satisfied with the experiment he had
made upon the government, upon the revenues, upon the reigning family,
and upon all the landed property, he resolved to make as bold and as
novel an experiment upon the commercial interests of the country.
Accordingly he entirely changed that part of the revenue system which
affects trade and commerce, the life and soul of a state. Without any
advice that we know of, except Mr. Markham's, he sat down to change in
every point the whole commercial system of that country; and he
effected the change upon the same arbitrary principles which he had
before acted upon, namely, his own arbitrary will. We are told, indeed,
that he consulted bankers and merchants; but when your Lordships shall
have learned what has happened from this experiment, you will easily see
whether he did resort to proper sources of information or not. You will
see that the mischief which has happened has proceeded from the exercise
of arbitrary power. Arbitrary power, my Lords, is always a miserable
creature. When a man once adopts it as the principle of his actions, no
one dares to tell him a truth, no one dares to give him any information
that is disagreeable to him; for all know that their life and fortune
depend upon his caprice. Thus the man who lives in the exercise of
arbitrary power condemns himself to eternal ignorance. Of this the
prisoner at your bar affords us a striking example. This man, without
advice, without assistance, and without resource, except in his own
arbitrary power, stupidly ignorant in himself, and puffed up with the
constant companion of ignorance, a blind presumption, alters the system
of commercial imposts, and thereby ruined the whole trade of the
country, leaving no one part of it undestroyed.
Let me now call your Lordships' attention to his assumption of power,
without one word of communication with the Council at Calcutta, where
the whole of these trading regulations might and ought to have been
considered, and where they could have been deliberately examined and
determined upon. By this assumption the Council was placed in the
situation which I have before described: it must either confirm his
acts, or again undo everything which had been done. He had provided not
only against resistance, but almost against any inquiry into his wild
projects. He had by his opium contracts put all vigilance asleep, and by
his bullock and other contracts he had secured a variety of concealed
interests, both abroad and at home. He was sure of the ratification of
his acts by the Council, whenever he should please to inform them of his
measures; and to his secret influence he trusted for impunity in his
career of tyranny and oppression.
In bringing before you his arbitrary mode of imposing duties, I beg to
remind your Lordships, that, when I examined Mr. Markham concerning the
imposing of a duty of five per cent instead of the former duty of two, I
asked him whether that five per cent was not laid on in such a manner as
utterly to extinguish the trade, and whether it was not in effect and
substance five times as much as had been paid before. What was his
answer? Why, that many plans, which, when considered in the closet, look
specious and plausible, will not hold when they come to be tried in
practice, and that this plan was one of them. The additional duties,
said he, have never since been exacted. But, my Lords, the very attempt
to exact them utterly ruined the trade of the country. They were imposed
upon a visionary theory, formed in his own closet, and the result was
exactly what might have been anticipated. Was it not an abominable thing
in Mr. Hastings to withhold from the Council the means of ascertaining
the real operation of his taxes? He had no knowledge of trade himself;
he cannot keep an account; he has no memory. In fact, we find him a man
possessed of no one quality fit for any kind of business whatever. We
find him pursuing his own visionary projects, without knowing anything
of the nature or [of?] the circumstances under which the trade of the
country was carried on. These projects might have looked very plausible:
but when you come to examine the actual state of the trade, it is not
merely a difference between five and two per cent, but it becomes a
different mode of estimating the commodity, and it amounts to five times
as much as was paid before. We bring this as an exemplification of this
cursed mode of arbitrary proceeding, and to show you his total ignorance
of the subject, and his total indifference about the event of the
measure he was pursuing. When he began to perceive his blunders, he
never took any means whatever to put the new regulations which these
blunders had made necessary into execution, but he left all this
mischievous project to rage in its full extent.
I have shown your Lordships how he managed the private property of the
country, how he managed the government, and how he managed the trade. I
am now to call your Lordships' attention to some of the consequences
which have resulted from the instances of management, or rather gross
mismanagement, which have been brought before you. Your Lordships will
recollect that none of these violent and arbitrary measures, either in
their conception or in the progress of their execution, were officially
made known to the Council; and you will observe, as we proved, that the
same criminal concealment existed with respect to the fatal consequences
of these acts.
After the flight of Cheyt Sing, the revenues were punctually paid by the
Naib, Durbege Sing, month by month, kist by kist, until the month of
July, and then, as the country had suffered some distress, the Naib
wished this kist, or instalment, to be thrown on the next month. You
will ask why he wished to burden this month beyond the rest. I reply,
The reason was obvious: the month of August is the last of the year, and
he would, at its expiration, have the advantage of viewing the receipts
of the whole year, and ascertaining the claim of the country to the
remission of a part of the annual tribute which Mr. Hastings had
promised, provided the instalments were paid regularly. It was well
known to everybody that the country had suffered very considerably by
the revolt, and by a drought which prevailed that year. The Rajah,
therefore, expected to avail himself of Mr. Hastings's flattering
promise, and to save by the delay the payment of one of the two kists.
But mark the course that was taken. The two kists were at once demanded
at the end of the year, and no remission of tribute was allowed. By the
promise of remission Mr. Hastings tacitly acknowledged that the Rajah
was overburdened; and he admits that the payment of the July kist was
postponed at the Rajah's own desire. He must have seen the Rajah's
motive for desiring delay, and he ought to have taken care that this
poor man should not be oppressed and ruined by this compliance with
requests founded on such motives.
So passed the year 1781. No complaints of arrears in Durbege Sing's
payments appear on record before the month of April, 1782; and I wish
your Lordships seriously to advert to the circumstances attending the
evidence respecting these arrears, which has been produced for the first
time by the prisoner in his defence here at your bar. This evidence does
not appear in the Company's records; it does not appear in the book of
the Benares correspondence; it does not appear in any documents to which
the Commons could have access; it was unknown to the Directors, unknown
to the Council, unknown to the Residents, Mr. Markham's successors, at
Benares, unknown to the searching and inquisitive eye of the Commons of
Great Britain. This important evidence was drawn out of Mr. Markham's
pocket, in the presence of your Lordships. It consists of a private
correspondence which he carried on with Mr. Hastings, unknown to the
Council, after Durbege Sing had been appointed Naib, after the new
government had been established, after Mr. Hastings had quitted that
province, and had apparently wholly abandoned it, and when there was no
reason whatever why the correspondence should not be public. This
private correspondence of Mr. Markham's, now produced for the first
time, is full of the bitterest complaints against Durbege Sing. These
clandestine complaints, these underhand means of accomplishing the ruin
of a man, without the knowledge of his true and proper judges, we
produce to your Lordships as a heavy aggravation of our charge, and as a
proof of a wicked conspiracy to destroy the man. For if there was any
danger of his falling into arrears when the heavy accumulated kists came
upon him, the Council ought to have known that danger; they ought to
have known every particular of these complaints: for Mr. Hastings had
then carried into effect his own plans.
I ought to have particularly marked for your Lordships' attention this
second era of clandestine correspondence between Mr. Hastings and Mr.
Markham. It commenced after Mr. Hastings had quitted Benares, and had
nothing to do with it but as Governor-General: even after his
extraordinary, and, as we contend, illegal, power had completely
expired, the same clandestine correspondence was carried on. He
apparently considered Benares as his private property; and just as a man
acts with his private steward about his private estate, so he acted with
the Resident at Benares. He receives from him and answers letters
containing a series of complaints against Durbege Sing, which began in
April and continued to the month of November, without making any public
communication of them. He never laid one word of this correspondence
before the Council until the 29th of November, and he had then
completely settled the fate of this Durbege Sing.
This clandestine correspondence we charge against him as an act of
rebellion; for he was bound to lay before the Council the whole of his
correspondence relative to the revenue and all the other affairs of the
country. We charge it not only as rebellion against the orders of the
Company and the laws of the land, but as a wicked plot to destroy this
man, by depriving him of any opportunity of defending himself before the
Council, his lawful judges. I wish to impress it strongly on your
Lordships' minds, that neither the complaints of Mr. Markham nor the
exculpations of Durbege Sing were ever made known till Mr. Markham was
examined in this hall.
The first intimation afforded the Council of what had been going on at
Benares from April, 1782, at which time, Mr. Markham says, the
complaints against Durbege Sing had risen to serious importance, was in
a letter dated the 27th of November following. This letter was sent to
the Council from Nia Serai, in the Ganges, where Mr. Hastings had
retired for the benefit of the air. During the whole time he was in
Calcutta, it does not appear upon the records that he had ever held any
communication with the Council upon the subject. The letter is in the
printed Minutes, page 298, and is as follows.
"_The Governor-General._--I desire the Secretary to lay the accompanying
letters from Mr. Markham before the board, and request that orders may
be immediately sent to him concerning the subjects contained in them. It
may be necessary to inform the board, that, on repeated information from
Mr. Markham, which indeed was confirmed to me beyond a doubt by other
channels, and by private assurances which I could trust, that the
affairs of that province were likely to fall into the greatest confusion
from the misconduct of Baboo Durbege Sing, whom I had appointed the
Naib, fearing the dangerous consequences of a delay, and being at too
great a distance to consult the members of the board, who I knew could
repose that confidence in my local knowledge as to admit of this
occasional exercise of my own separate authority, I wrote to Mr. Markham
the letter to which he alludes, dated the 29th of September last, of
which I now lay before the board a copy. The first of the accompanying
letters from Mr. Markham arrived at a time when a severe return of my
late illness obliged me, by the advice of my physicians, to leave
Calcutta for the benefit of the country air, and prevented me from
bringing it earlier before the notice of the board."
I have to remark upon this part of the letter, that he claims for
himself an exercise of his own authority. He had now no delegation, and
therefore no claim to separate authority. He was only a member of the
board, obliged to do everything according to the decision of the
majority, and yet he speaks of his own separate authority; and after
complimenting himself, he requests its confirmation. The complaints of
Mr. Markham had been increasing, growing, and multiplying upon him, from
the month of April preceding, and he had never given the least
intimation of it to the board until he wrote this letter. This was at so
late a period that he then says, "The time won't wait for a remedy; I am
obliged to use my own separate authority"; although he had had abundant
time for laying the whole matter before the Council.
He next goes on to say,--"It had, indeed, been my intention, but for the
same cause, to have requested the instructions of the board for the
conduct of Mr. Markham in the difficulties which he had to encounter
immediately after the date of my letter to him, and to have recommended
the substance of it for an order to the board." He seems to have
promised Mr. Markham, that, if the violent act which Mr. Markham
proposed, and which he, Mr. Hastings, ordered, was carried into
execution, an authority should be procured from the board. He, however,
did not get Mr. Markham such an authority. Why? Because he was resolved,
as he has told you, to act by his own separate authority; and because,
as he has likewise told you, that he disobeys the orders of the Court of
Directors, and defies the laws of his country, as a signal of his
authority.
Now what does he recommend to the board? That it will be pleased to
confirm the appointment which Mr. Markham made in obedience to his
individual orders, as well as the directions which he had given him to
exact from Baboo Durbege Sing with the utmost rigor every rupee of the
collections, and either to confine him at Benares or send him to Chunar
and imprison him there until the whole of his arrears were paid up.
Here, then, my Lords, you have, what plainly appears in every act of Mr.
Hastings, a feeling of resentment for some personal injury. "I feel
myself," says he, "and may be allowed on such an occasion to acknowledge
it, personally hurt at the ingratitude of this man, and the discredit
which his ill conduct has thrown on my appointment of him. The Rajah
himself, scarcely arrived at the verge of manhood, was in understanding
but little advanced beyond the term of childhood; and it had been the
policy of Cheyt Sing to keep him equally secluded from the world and
from business." This is the character Mr. Hastings gives of a man whom
he appointed to govern the country. He goes on to say of Durbege
Sing,--"As he was allowed a jaghire of a very liberal amount, to enable
him to maintain a state and consequence suitable both to the relation in
which he stood to the Rajah and the high office which had been assigned
to him, and sufficient also to free him from the temptation of little
and mean peculations, it is therefore my opinion, and I recommend, that
Mr. Markham be ordered to divest him of his jaghire, and reunite it to
the _malguzaree_, or the land paying its revenue through the Rajah to
the Company. The opposition made by the Rajah and the old Ranny, both
equally incapable of judging for themselves, do certainly originate from
some secret influence which ought to be checked by a decided and
peremptory declaration of the authority of the board, and a denunciation
of their displeasure at their presumption. If they can be induced to
yield the appearance of a cheerful acquiescence in the new arrangement,
and to adopt it as a measure formed with their participation, it would
be better than that it should be done by a declared act of compulsion;
but at all events it ought to be done." My Lords, it had been already
done: the Naib was dismissed; he was imprisoned; his jaghire was
confiscated: all these things were done by Mr. Hastings's orders. He had
resolved to take the whole upon himself; he had acted upon that
resolution before he addressed this letter to the board.
Thus, my Lords, was this unhappy man punished without any previous
trial, or any charges, except the complaints of Mr. Markham, and some
other private information which Mr. Hastings said he had received.
Before the poor object of these complaints could make up his accounts,
before a single step was taken, judicially or officially, to convict him
of any crime, he was sent to prison, and his private estates
confiscated.
My Lords, the Commons of Great Britain claim from you, that no man shall
be imprisoned till a regular charge is made against him, and the accused
fairly heard in his defence. They claim from you, that no man shall be
imprisoned on a matter of account, until the account is settled between
the parties. And claiming this, we do say that the prisoner's conduct
towards Durbege Sing was illegal, unjust, violent, and oppressive. The
imprisonment of this man was clearly illegal on the part of Mr.
Hastings, as he acted without the authority of the Council, and doubly
oppressive, as the imprisoned man was thereby disabled from settling his
account with the numberless sub-accountants whom he had to deal with in
the collection of the revenue.
Having now done with these wicked, flagitious, abandoned, and abominable
acts, I shall proceed to the extraordinary powers given by Mr. Hastings
to his instrument, Mr. Markham, who was employed in perpetrating these
acts, and to the very extraordinary instructions which he gave this
instrument for his conduct in the execution of the power intrusted to
him. In a letter to Mr. Markham, he says,--
"I need not tell you, my dear Sir, that I possess a very high opinion of
your abilities, and that I repose the utmost confidence in your
integrity." He might have had reason for both, but he scarcely left to
Mr. Markham the use of either. He arbitrarily imposed upon him the tasks
which he wished him to execute, and he engaged to bear out his acts by
his own power. "From your long residence at Benares," says he, "and from
the part you have had in the business of that zemindary, you must
certainly best know the men who are most capable and deserving of public
employment. From among these I authorize you to nominate a Naib to the
Rajah, in the room of Durbege Sing, whom, on account of his ill conduct,
I think it necessary to dismiss from that office. It will be hardly
necessary to except Ussaun Sing from the description of men to whom I
have limited your choice, yet it may not be improper to apprise you that
I will on no terms consent to his being Naib. In forming the
arrangements consequent upon this new appointment, I request you will,
as far as you can with propriety, adopt those which were in use during
the life of Bulwant Sing,--so far, at least, as to have distinct offices
for distinct purposes, independent of each other, and with proper men at
the head of each; so that one office may detect or prevent any abuses
or irregularities in the others, and together form a system of
reciprocal checks. Upon that principle, I desire you will in particular
establish, under whatever names, one office of receipts, and another of
treasury. The officers of both must be responsible for the truth and
regularity of their respective accounts, but not subject in the
statement of them to the control or interference of the Rajah or Naib;
nor should they be removable at pleasure, but for manifest misconduct
only. At the head of one or other of these offices I could wish to see
the late Buckshee, Rogoober Dyall. His conduct in his former office, his
behavior on the revolt of Cheyt Sing, and particularly at the fall of
Bidjegur, together with his general character, prove him worthy of
employment, and of the notice of our government. It is possible that he
may have objections to holding an office under the present Rajah: offer
him one, however, and let him know that you do so by my directions." He
then goes on to say,--"Do not wholly neglect the Rajah; consult with him
in appearance, but in appearance only. His situation requires that you
should do that much; but his youth and inexperience forbid that you
should do more."
You see, my Lords, he has completely put the whole government into the
hands of a man who had no name, character, or official situation, but
that of the Company's Resident at that place. Let us now see what is the
office of a Resident. It is to reside at the court of the native prince,
to give the Council notice of the transactions that are going on there,
and to take care that the tribute be regularly paid, kist by kist. But
we have seen that Mr. Markham, the Resident at Benares, was invested by
Mr. Hastings with supreme authority in this unhappy country. He was to
name whoever he pleased to its government, with the exception of Ussaun
Sing, and to drive out the person who had possessed it under an
authority which could only be revoked by the Council. Thus Mr. Hastings
delegated to Mr. Markham an authority which he himself did not really
possess, and which could only be legally exercised through the medium of
the Council.
With respect to Durbege Sing, he adds,--"He has dishonored my choice of
him." _My_ choice of him! "It now only remains to guard against the ill
effects of his misconduct, to detect and punish it. To this end I desire
that the officers to be appointed in consequence of these instructions
do, with as much accuracy and expedition as possible, make out an
account of the receipts, disbursements, and transactions of Durbege
Sing, during the time he has acted as Naib of the zemindary of Benares;
and I desire you will, in my name, assure him, that, unless he pays at
the limited time every rupee of the revenue due to the Company, his life
shall answer for the default. I need not caution you to provide against
his flight, and the removal of his effects." He here says, my Lords,
that he will detect and punish him; but the first thing he does, without
any detection, even before the accounts he talks of are made up, and
without knowing whether he has got the money or not, he declares that he
will have every rupee paid at the time, or otherwise the Naib's life
shall pay for it.
Is this the language of a British governor,--of a person appointed to
govern _by law_ nations subject to the dominion and under the protection
of this kingdom? Is he to order a man to be first imprisoned and
deprived of his property, then, for an inquiry to be made, and to
declare, during that inquiry, that, if every rupee of a presumed
embezzlement be not paid up, the life of his victim shall answer for it?
And accordingly this man's life did answer for it,--as I have already
had occasion to mention to your Lordships.
I will now read Mr. Markham's letter to the Council, in which he enters
into the charges against Durbege Sing, after this unhappy man had been
imprisoned.
Benares, 24th of October, 1782.--"I am sorry that my duty obliges me to
mention to your Honorable Board my apprehensions of a severe loss
accruing to the Honorable Company, if Baboo Durbege Sing is continued in
the Naibut during the present year. I ground my fears on the knowledge I
have had of his mismanagement, the bad choice he has made of his aumils,
the mistrust which they have of him, and the several complaints which
have been preferred to me by the ryots of almost every purgunnah in the
zemindary. I did not choose to waste the time of your Honorable Board in
listening to my representations of his inattention to the complaints of
oppression which were made to him by his ryots, as I hoped that a letter
he received from the Honorable Governor-General would have had weight
sufficient to have made him more regular in his business, and more
careful of his son's interest."
My Lords, think of the condition of your government in India! Here is a
Resident at Benares exercising power not given to him by virtue of his
office, but given only by the private orders of the prisoner at your
bar. And what is it he does? He says, he did not choose to trouble the
Council with a particular account of his reasons for removing a man who
possessed an high office under their immediate appointment. The Council
was not to know them: he did not choose to waste the time of their
honorable board in listening to the complaints of the people. No: the
honorable board is not to have its time wasted in that improper manner;
therefore, without the least inquiry or inquisition, the man must be
imprisoned, and deprived of his office; he must have all his property
confiscated, and be threatened with the loss of his life.
These are crimes, my Lords, for which the Commons of Great Britain knock
at the breasts of your consciences, and call for justice. They would
think themselves dishonored forever, if they had not brought these
crimes before your Lordships, and with the utmost energy demanded your
vindictive justice, to the fullest extent in which it can be rendered.
But there are some aggravating circumstances in these crimes, which I
have not yet stated. It appears that this unhappy and injured man was,
without any solicitation of his own, placed in a situation the duties of
which even Mr. Hastings considered it impossible for him to execute.
Instead of supporting him with the countenance of the supreme
government, Mr. Hastings did everything to lessen his weight, his
consequence, and authority. And when the business of the collection
became embarrassed, without any fault of his, that has ever yet been
proved, Mr. Markham instituted an inquiry. What kind of inquiry it was
that would or could be made your Lordships will judge. While this was
going on, Mr. Markham tells you, that, in consequence of orders which
he had received, he first put him into a gentle confinement. Your
Lordships know what that confinement was; and you know what it is for a
man of his rank to be put into any confinement. We have shown he was
thereby incapable of transacting business. His life had been threatened,
if he should not pay in the balance of his accounts within a short
limited time; still he was subjected to confinement, while he had money
accounts to settle with the whole country. Could a man in gaol,
dishonored and reprobated, take effectual means to recover the arrears
which he was called upon to pay? Could he, in such a situation, recover
the money which was unpaid to him, in such an extensive district as
Benares? Yet Mr. Markham tells the Council he thought proper "that
Durbege Sing should be put under a gentle confinement, until I shall
receive your Honorable Board's orders for any future measures." Thus Mr.
Markham, without any orders from the Council, assumed an authority to do
that which we assert a Resident at Benares had no right to do, but to
which he was instigated by Mr. Hastings's recommendation that Durbege
Sing should be prevented from flight.
Now, my Lords, was it to be expected that a man of Durbege Sing's rank
should suffer these hardships and indignities, and at the same time kiss
the rod and say, "I have deserved it all"? We know that all mankind
revolts at oppression, if it be real; we know that men do not willingly
submit to punishment, just or unjust; and we find that Durbege Sing had
near relatives, who used for his relief all the power which was left
them,--that of remonstrating with his oppressors. Two _arzees_, or
petitions, were presented to the Council, of which we shall first call
your Lordships' attention to one from the dowager princess of Benares,
in favor of her child and of her family.
_From the Ranny, widow of Bulwant Sing. Received the 15th of
December, 1782._
"I and my children have no hopes but from your Highness, and our
honor and rank are bestowed by you. Mr. Markham, from the advice of
my enemies, having protected the farmers, would not permit the
balances to be collected. Baboo Durbege Sing frequently before
desired that gentleman to show his resentment against the people who
owed balances, that the balances might be collected, and to give
ease to his mind for the present year, conformably to the requests
signed by the presence, that he might complete the _bundobust_. But
that gentleman would not listen to him, and, having appointed a
_mutsuddy_ and _tahsildar_, employs them in the collections of the
year, and sent two companies of sepoys and arrested Baboo Durbege
Sing upon this charge, that he had secreted in his house many lacs
of rupees from the collections, and he carried the mutsuddies and
treasurer with their papers to his own presence. He neither
ascertained this matter by proofs, nor does he complete the balance
of the sircar from the _jaidads_ of the balances: right or wrong, he
is resolved to destroy our lives. As we have no asylum or hope
except from your Highness, and as the Almighty has formed your mind
to be a distributor of justice in these times, I therefore hope from
the benignity of your Highness, that you will inquire and do justice
in this matter, and that an _aumeen_ may be appointed from the
presence, that, having discovered the crimes or innocence of Baboo
Durbege Sing, he may report to the presence. Further particulars
will be made known to your Highness by the arzee of my son Rajah
Mehip Narrain Bahadur."
_Arzee from Rajah Mehip Narrain Bahadur. Received 15th December,
1782._
"I before this had the honor of addressing several arzees to your
presence; but, from my unfortunate state, not one of them has been
perused by your Highness, that my situation might be fully learnt by
you. The case is this. Mr. Markham, from the advice of my enemies,
having occasioned several kinds of losses, and given protection to
those who owed balances, prevented the balance from being
collected,--for this reason, that, the money not being paid in time,
the Baboo might be convicted of inability. From this reason, all the
owers of balances refused to pay the _malwajib_ of the sircar.
Before this, the Baboo had frequently desired that gentleman to show
his resentment against the persons who owed the balances, that the
balances might be paid, and that his mind might be at ease for the
present year, so that the _bundobust_ of the present year might be
completed,--adding, that, if, next year, such kinds of injuries, and
protection of the farmers, were to happen, he should not be able to
support it."
I am here to remark to your Lordships, that the last of these petitions
begins by stating, "I before this have had the honor of addressing
several arzees to your presence; but, from my unfortunate state, not one
of them has been perused by your Highness." My Lords, if there is any
one right secured to the subject, it is that of presenting a petition
and having that petition noticed. This right grows in importance in
proportion to the power and despotic nature of the governments to which
the petitioner is subject: for where there is no sort of remedy from any
fixed laws, nothing remains but complaint, and prayers, and petitions.
This was the case in Benares: for Mr. Hastings had destroyed every trace
of law, leaving only the police of the single city of Benares. Still we
find this complaint, prayer, and petition was not the first, but only
one of many, which Mr. Hastings took no notice of, entirely despised,
and never would suffer to be produced to the Council; which never knew
anything, until this bundle of papers came before them, of the complaint
of Mr. Markham against Durbege Sing, or of the complaint of Durbege Sing
against Mr. Markham.
Observe, my Lords, the person that put Durbege Sing in prison was Mr.
Markham; while the complaint in the arzee is, that Mr. Markham was
himself the cause of the very failure for which he imprisoned him. Now
what was the conduct of Mr. Hastings as judge? He has two persons before
him: the one in the ostensible care of the revenue of the country; the
other his own agent, acting under his authority. The first is accused by
the second of default in his payments; the latter is complained of by
the former, who says that the occasion of the accusation had been
furnished by him, the accuser. The judge, instead of granting redress,
dismisses the complaints against Mr. Markham with reprehension, and
sends the complainant to rot in prison, without making one inquiry, or
giving himself the trouble of stating to Mr. Markham the complaints
against him, and desiring him to clear himself from them. My Lords, if
there were nothing but this to mark the treacherous and perfidious
nature of his conduct, this would be sufficient.
In this state of things, Mr. Hastings thus writes.
"To Mr. Markham. The measures which you have taken with Baboo Durbege
Sing are perfectly right and proper, so far as they go; and we now
direct that you exact from him, with the utmost rigor, every rupee of
the collections which it shall appear that he has made and not brought
to account, and either confine him at Benares, or send him prisoner to
Chunar, and keep him in confinement until he shall have discharged the
whole of the amount due from him."
He here employs the very person against whom the complaint is made to
imprison the complainant. He approves the conduct of his agent without
having heard his defence, and leaves him, at his option, to keep his
victim a prisoner at Benares, or to imprison him in the fortress of
Chunar, the infernal place to which he sends the persons whom he has a
mind to extort money from.
Your Lordships will be curious to know how this debt of Durbege Sing
stood at the time of his imprisonment. I will state the matter to your
Lordships briefly, and in plain language, referring you for the
particulars of the account to the papers which are in your Minutes. It
appears from them, that, towards the end of the yearly account in 1782,
a kist or payment of eight lacs (about 80,000_l._), the balance of the
annual tribute, was due. In part of this kist, Durbege Sing paid two
lacs (20,000_l._). Of the remaining six lacs (60,000_l._), the
outstanding debts in the country due to the revenue, but not collected
by the Naib, amounted to four lacs (40,000_l._). Thus far the account
is not controverted by the accusing party. But Mr. Markham asserts that
he _shall_ be able to prove that the Naib had also actually received the
other two lacs (20,000_l._), and consequently was an actual defaulter to
that amount, and had, upon the whole, suffered the annual tribute to
fall six lacs in arrear. The Naib denies the receipt of the two lacs
just mentioned, and challenges inquiry; but no inquiries appear to have
been made, and to this hour Mr. Markham has produced no proof of the
fact. With respect to the arrear of the tribute money which appeared on
the balance of the whole account, the Naib defended himself by alleging
the distresses of the country, the diminution of his authority, and the
want of support from the supreme government in the collection of the
revenues; and he asserts that he has assets sufficient, if time and
power be allowed him for collecting them, to discharge the whole balance
due to the Company. The immediate payment of the whole balance was
demanded, and Durbege Sing, unable to comply with the demand, was sent
to prison. Thus stood the business, when Mr. Markham, soon after he had
sent the Naib to prison, quitted the Residency. He was succeeded by Mr.
Benn, who acted exactly upon the same principle. He declares that the
six lacs demanded were not demanded upon the principle of its having
been actually collected by him, but upon the principle of his having
agreed to pay it. "We have," say Mr. Hastings's agents to the Naib, "we
have a Jew's bond. If it is in your bond, we will have it, or we will
have a pound of your flesh: whether you have received it or not is no
business of ours." About this time some hopes were entertained by the
Resident that the Naib's personal exertions in collecting the arrears of
the tribute might be useful. These hopes procured him a short liberation
from his confinement. He was let out of prison, and appears to have made
another payment of half a lac of rupees. Still the terms of the bond
were insisted on, although Mr. Hastings had allowed that these terms
were extravagant, and only one lac and a half of the money which had
been actually received remained unpaid. One would think that common
charity, that common decency, that common regard to the decorum of life
would, under such circumstances, have hindered Mr. Hastings from
imprisoning him again. But, my Lords, he was imprisoned again; he
continued in prison till Mr. Hastings quitted the country; and there he
soon after died,--a victim to the enormous oppression which has been
detailed to your Lordships.
It appears that in the mean time the Residents had been using other
means for recovering the balance due to the Company. The family of the
Rajah had not been paid one shilling of the 60,000_l._, allowed for
their maintenance. They were obliged to mortgage their own hereditary
estates for their support, while the Residents confiscated all the
property of Durbege Sing. Of the money thus obtained what account has
been given? None, my Lords, none. It must therefore have been disposed
of in some abominably corrupt way or other, while this miserable victim
of Mr. Hastings was left to perish in a prison, after he had been
elevated to the highest rank in the country.
But, without doubt, they found abundance of effects after his death? No,
my Lords, they did not find anything. They ransacked his house; they
examined all his accounts, every paper that he had, in and out of
prison. They searched and scrutinized everything. They had every penny
of his fortune, and I believe, though I cannot with certainty know, that
the man died insolvent; and it was not pretended that he had ever
applied to his own use any part of the Company's money.
Thus Durbege Sing is gone; this tragedy is finished; a second Rajah of
Benares has been destroyed. I do not speak of that miserable puppet who
was said by Mr. Hastings to be in a state of childhood when arrived at
manhood, but of the person who represented the dignity of the family. He
is gone; he is swept away; and in his name, in the name of this devoted
Durbege Sing, in the name of his afflicted family, in the name of the
people of the country thus oppressed by an usurped authority, in the
name of all these, respecting whom justice has been thus outraged, we
call upon your Lordships for justice.
We are now at the commencement of a new order of things. Mr. Markham had
been authorized to appoint whoever he pleased as Naib, with the
exception of Ussaun Sing. He accordingly exercises this power, and
chooses a person called Jagher Deo Seo. From the time of the confinement
of Durbege Sing to the time of this man's being put into the government,
in whose hands were the revenues of the country? Mr. Markham himself has
told you, at your bar, that they were in his hands,--that he was the
person who not only named this man, but that he had the sole management
of the revenues; and he was, of course, answerable for them all that
time. The nominal title of Zemindar was still left to the miserable
pageant who held it; but even the very name soon fell entirely out of
use. It is in evidence before your Lordships that his name is not even
so much as mentioned in the proceedings of the government; and that the
person who really governed was not the ostensible Jagher Deo Seo, but
Mr. Markham. The government, therefore, was taken completely and
entirely out of the hands of the person who had a legal right to
administer it,--out of the hands of his guardians,--out of the hands of
his mother,--out of the hands of his nearest relations,--and, in short,
of all those who, in the common course of things, ought to have been
intrusted with it. From all such persons, I say, it was taken: and
where, my Lords, was it deposited? Why, in the hands of a man of whom we
know nothing, and of whom we never heard anything, before we heard that
Mr. Markham, of his own usurped authority, authorized by the usurped
authority of Mr. Hastings, without the least communication with the
Council, had put him in possession of that country.
Mr. Markham himself, as I have just said, administered the revenues
alone, without the smallest authority for so doing, without the least
knowledge of the Council, till Jagher Deo Seo was appointed Naib. Did he
then give up his authority? No such thing. All the measures of Jagher
Deo Seo's government were taken with the concurrence and joint
management of Mr. Markham. He conducted the whole; the settlements were
made, the leases and agreements with farmers all regulated by him. I
need not tell you, I believe, that Jagher Deo Seo was not a person of
very much authority in the case: your Lordships would laugh at me, if I
said he was. The revenue arrangements were, I firmly believe, regulated
and made by Mr. Markham. But whether they were or were not, it comes to
the same thing. If they were improperly made and improperly conducted,
Mr. Hastings is responsible for the whole of the mismanagement; for he
gave the entire control to a person who had little experience, who was
young in the world (and this is the excuse I wish to make for a
gentleman of that age). He appointed him, and gave him at large a
discretionary authority to name whom he pleased to be the ostensible
Naib; but we know that he took the principal part himself in all his
settlements and in all his proceedings.
Soon after the Naib had been thus appointed and instructed by Mr.
Markham, he settled, under his directions, the administration of the
country. Mr. Markham then desires leave from Mr. Hastings to go down to
Calcutta. I imagine he never returned to Benares; he comes to Europe;
and here end the acts of this viceroy and delegate.
Let us now begin the reign of Mr. Benn and Mr. Fowke. These gentlemen
had just the same power delegated to them that Mr. Markham
possessed,--not one jot less, that I know of; and they were therefore
responsible, and ought to have been called to an account by Mr. Hastings
for every part of their proceedings. I will not give you my own account
of the reign of these gentlemen; but I will read to you what Mr.
Hastings has thought proper to represent the state of the people to be
under their government. This course will save your Lordships time and
trouble; for it will nearly supersede all observations of mine upon the
subject. I hold in my hand Mr. Hastings's representation of the effects
produced by a government which was conceived by himself, carried into
effect by himself, and illegally invested by him with illegal powers,
without any security or responsibility of any kind. Hear, I say, what an
account Mr. Hastings gave, when he afterwards went up to Benares upon
another wicked project, and think what ought to have been his feelings
as he looked upon the ruin he had occasioned. Think of the condition in
which he saw Benares the first day he entered it. He then saw it
beautiful, ornamented, rich,--an object that envy would have shed tears
over for its prosperity, that humanity would have beheld with eyes
glistening with joy for the comfort and happiness which were there
enjoyed by man: a country flourishing in cultivation to such a degree
that the soldiers were obliged to march in single files through the
fields of corn, to avoid damaging them; a country in which Mr. Stables
has stated that the villages were thick beyond all expression; a country
where the people pressed round their sovereign, as Mr. Stables also told
you, with joy, triumph, and satisfaction. Such was the country; and in
such a state and under such a master was it, when he first saw it. See
what it now is under Warren Hastings; see what it is under the British
government; and then judge whether the Commons are or are not right in
pressing the subject upon your Lordships for your decision, and letting
you and all this great auditory know what sort of a criminal you have
before you, who has had the impudence to represent to your Lordships at
your bar that Benares is in a flourishing condition, in defiance of the
evidence which we have under his own hands, and who, in all the false
papers that have been circulated to debauch the public opinion, has
stated that we, the Commons, have given a false representation as to
the state of the country under the English government.
_Lucknow, the 2d of April, 1784. Addressed to the Honorable Edward
Wheler, Esq., &c. Signed Warren Hastings. It is in page 306 of the
printed Minutes._
"Gentlemen,--Having contrived, by making forced stages, while the
troops of my escort marched at the ordinary rate, to make a stay of
five days at Benares, I was thereby furnished with the means of
acquiring some knowledge of the state of the province, which I am
anxious to communicate to you: indeed, the inquiry, which was in a
great degree obtruded upon me, affected me with very mortifying
reflections on my own inability to apply it to any useful purpose.
"From the confines of Buxar to Benares I was followed and fatigued
by the clamors of the discontented inhabitants. It was what I
expected in a degree, because it is rare that the exercise of
authority should prove satisfactory to all who are the objects of
it. The distresses which were produced by the long continued drought
unavoidably tended to heighten the general discontent; yet I have
reason to fear that the cause existed principally in a defective, if
not a corrupt and oppressive administration. Of a multitude of
petitions which were presented to me, and of which I took minutes,
every one that did not relate to a personal grievance contained the
representation of one and the same species of oppression, which is
in its nature of an influence most fatal to the future cultivation.
The practice to which I allude is this. It is affirmed that the
aumils and renters exact from the proprietors of the actual harvest
a large increase in kind on their stipulated rent: that is, from
those who hold their pottahs by the tenure of paying one half of the
produce of their crops, either the whole without a subterfuge, or a
large proportion of it by false measurement or other pretexts; and
from those whose engagements are for a fixed rent in money the half
or a greater proportion is taken in kind. This is in effect a tax
upon the industry of the inhabitants; since there is scarcely a
field of grain in the province, I might say not one, which has not
been preserved by the incessant labor of the cultivator, by digging
wells for their supply, or watering them from the wells of masonry
with which this country abounds, or from the neighboring tanks,
rivers, and nullahs. The people who imposed on themselves this
voluntary and extraordinary labor, and not unattended with expense,
did it in the expectation of reaping the profits of it; and it is
certain that they would not have done it, if they had known that
their rulers, from whom they were entitled to an indemnification,
would take from them what they had so hardly earned. If the same
administration continues, and the country shall again labor under a
want of the natural rains, every field will be abandoned, the
revenue fail, and thousands perish, through the want of subsistence:
for who will labor for the sole benefit of others, and to make
himself the subject of vexation? These practices are not to be
imputed to the aumils employed in the districts, but to the Naib
himself. The avowed principle on which he acts, and which he
acknowledged to myself, is, that the whole sum fixed for the revenue
of the province must be collected, and that for this purpose the
deficiency arising in places where the crops have failed, or which
have been left uncultivated, must be supplied from the resources of
others, where the soil has been better suited to the season, or the
industry of the cultivators more successfully exerted: a principle
which, however specious and plausible it may at first appear,
certainly tends to the most pernicious and destructive consequences.
If this declaration of the Naib had been made only to myself, I
might have doubted my construction of it; but it was repeated by him
to Mr. Anderson, who understood it exactly in the same sense. In the
management of the customs, the conduct of the Naib, or of the
officers under him, was forced also upon my attention. The
exorbitant rates exacted by an arbitrary valuation of the goods, the
practice of exacting duties twice on the same goods, first from the
seller and afterwards from the buyer, and the vexatious disputes and
delays drawn on the merchants by these oppressions, were loudly
complained of; and some instances of this kind were said to exist at
the very time when I was in Benares. Under such circumstances, we
are not to wonder, if the merchants of foreign countries are
discouraged from resorting to Benares, and if the commerce of that
province should annually decay.
"Other evils, or imputed evils, have accidentally come to my
knowledge, which I will not now particularize, as I hope that with
the assistance of the Resident they may be in part corrected: one,
however, I must mention, because it has been verified by my own
observation, and is of that kind which reflects an unmerited
reproach on our general and national character. When I was at Buxar,
the Resident at my desire enjoined the Naib to appoint creditable
people to every town through which our route lay, to persuade and
encourage the inhabitants to remain in their houses, promising to
give them guards as I approached, and they required it for their
protection; and that he might perceive how earnest I was for his
observance of this precaution, (which I am certain was faithfully
delivered,) I repeated it to him in person, and dismissed him, that
he might precede me for that purpose: but, to my great
disappointment, I found every place through which I passed
abandoned; nor had there been a man left in any of them for their
protection. I am sorry to add, that, from Buxar to the opposite
boundary, I have seen nothing but the traces of complete devastation
in every village, whether caused by the followers of the troops
which have lately passed, for their natural relief, (and I know not
whether my own may not have had their share,) or from the
apprehension of the inhabitants left to themselves, and of
themselves deserting their houses. I wish to acquit my own
countrymen of the blame of these unfavorable appearances, and in my
own heart I do acquit them: for at one encampment, near a large
village called Derrara, in the purgunnah of Zemaneea, a crowd of
people came to me, complaining that their former aumil, who was a
native of the place, and had long been established in authority over
them, and whose custom it had been, whenever any troops passed, to
remain in person on the spot for their protection, having been
removed, the new aumil, on the approach of any military detachment,
himself first fled from the place, and the inhabitants, having no
one to whom they could apply for redress, or for the representation
of their grievances, and being thus remediless, fled also; so that
their houses and effects became a prey to any person who chose to
plunder them. The general conclusion appeared to me an inevitable
consequence from such a state of facts,--and my own senses bore
testimony to it in this specific instance; nor do I know how it is
possible for any officer commanding a military party, how attentive
soever he may be to the discipline and forbearance of his people,
to prevent disorders, when there is neither opposition to hinder nor
evidence to detect them. These and many other irregularities I
impute solely to the Naib; and I think it my duty to recommend his
instant removal. I would myself have dismissed him, had the control
of this province come within the line of my powers, and have
established such regulations and checks as would have been most
likely to prevent the like irregularities. I have said checks,
because, unless there is some visible influence, and a powerful and
able one, impended over the head of the manager, no system can
avail. The next appointed may prove, from some defect, as unfit for
the office as the present; for the choice is limited to few, without
experience to guide it. The first was of my own nomination; his
merits and qualifications stood in equal balance with my knowledge
of those who might have been the candidates for the office; but he
was the father of the Rajah, and the affinity sunk the scale wholly
in his favor: for who could be so fit to be intrusted with the
charge of his son's interest, and the new credit of the rising
family? He deceived my expectations. Another was recommended by the
Resident, and at my instance the board appointed him. This was
Jagher Deo Seo, the present Naib. I knew him not, and the other
members of the board as little. While Mr. Markham remained in
office, of whom, as his immediate patron, he may have stood in awe,
I am told that he restrained his natural disposition, which has been
described to me as rapacious, unfeeling, haughty, and to an extreme
vindictive.
"I cannot avoid remarking, that, excepting the city of Benares
itself, the province depending upon it is in effect without a
government, the Naib exercising only a dependent jurisdiction
without a principal. The Rajah is without authority, and even his
name disused in the official instruments issued or taken by the
manager. The representation of his situation shall be the subject of
another letter; I have made this already too long, and shall confine
it to the single subject for the communication of which it was
begun. This permit me to recapitulate. The administration of the
province is misconducted, and the people oppressed; trade
discouraged, and the revenue, though said to be exceeded in the
actual collections by many lacs, (for I have a minute account of it,
which states the net amount, including jaghires, as something more
than fifty-one lacs,) in danger of a rapid decline, from the violent
appropriation of its means; the Naib or manager is unfit for his
office; a new manager is required, and a system of official
control,--in a word, a constitution: for neither can the board
extend its superintending powers to a district so remote from its
observation, nor has it delegated that authority to the Resident,
who is merely the representative of government, and the receiver of
its revenue in the last process of it; nor, indeed, would it be
possible to render him wholly so, for reasons which I may hereafter
detail."
My Lords, you have now heard--not from the Managers, not from records of
office, not from witnesses at your bar, but from the prisoner
himself--the state of the country of Benares, from the time that Mr.
Hastings and his delegated Residents had taken the management of it. My
Lords, it is a proof, beyond all other proof, of the melancholy state of
the country, in which, by attempting to exercise usurped and arbitrary
power, all power and all authority become extinguished, complete anarchy
takes place, and nothing of government appears but the means of robbing
and ravaging, with an utter indisposition to take one step for the
protection of the people.
Think, my Lords, what a triumphal progress it was for a British
governor, from one extremity of the province to the other, (for so he
has stated it,) to be pursued by the cries of an oppressed and ruined
people, where they dared to appear before him,--and when they did not
dare to appear, flying from every place, even the very magistrates being
the first to fly! Think, my Lords, that, when these unhappy people saw
the appearance of a British soldier, they fled as from a pestilence; and
then think, that these were the people who labored in the manner which
you have just heard, who dug their own wells, whose country would not
produce anything but from the indefatigable industry of its inhabitants;
and that such a meritorious, such an industrious people, should be
subjected to such a cursed anarchy under pretence of revenue, to such a
cursed tyranny under the pretence of government!
"But Jagher Deo Seo was unfit for his office."--"How dared you to
appoint a man unfit for his office?"--"Oh, it signified little, without
their having a constitution."--"Why did you destroy the official
constitution that existed before? How dared you to destroy those
establishments which enabled the people to dig wells and to cultivate
the country like a garden, and then to leave the whole in the hands of
your arbitrary and wicked Residents and their instruments, chosen
without the least idea of government and without the least idea of
protection?"
God has sometimes converted wickedness into madness; and it is to the
credit of human reason, that men who are not in some degree mad are
never capable of being in the highest degree wicked. The human faculties
and reason are in such cases deranged; and therefore this man has been
dragged by the just vengeance of Providence to make his own madness the
discoverer of his own wicked, perfidious, and cursed machinations in
that devoted country.
Think, my Lords, of what he says respecting the military. He says there
is no restraining them,--that they pillage the country wherever they go.
But had not Mr. Hastings himself just before encouraged the military to
pillage the country? Did he not make the people's resistance, when the
soldiers attempted to pillage them, one of the crimes of Cheyt Sing? And
who would dare to obstruct the military in their abominable ravages,
when they knew that one of the articles of Cheyt Sing's impeachment was
his having suffered the people of the country, when plundered by these
wicked soldiers, to return injury for injury and blow for blow? When
they saw, I say, that these were the things for which Cheyt Sing was
sacrificed, there was manifestly nothing left for them but
flight.--What! fly from a Governor-General? You would expect he was
bearing to the country, upon his balmy and healing wings, the cure of
all its disorders and of all its distress. No: they knew him too well;
they knew him to be the destroyer of the country; they knew him to be
the destroyer of their sovereign, the destroyer of the persons whom he
had appointed to govern under him; they knew that neither governor,
sub-governor, nor subject could enjoy a moment's security while he
possessed supreme power. This was the state of the country; and this the
Commons of England call upon your Lordships to avenge.
Let us now see what is next done by the prisoner at your bar. He is
satisfied with simply removing from his office Jagher Deo Seo, who is
accused by him of all these corruptions and oppressions. The other poor,
unfortunate man, who was not even accused of malversations in such a
degree, and against whom not one of the accusations of oppression was
regularly proved, but who had, in Mr. Hastings's eye, the one
unpardonable fault of not having been made richer by his crimes, was
twice imprisoned, and finally perished in prison. But we have never
heard one word of the imprisonment of Jagher Deo Seo, who, I believe,
after some mock inquiry, was acquitted.
Here, my Lords, I must beg you to recollect Mr. Hastings's proceeding
with Gunga Govind Sing, and to contrast his conduct towards these two
peculators with his proceeding towards Durbege Sing. Such a comparison
will let your Lordships into the secret of one of the prisoner's motives
of conduct upon such occasions. When you will find a man pillaging and
desolating a country, in the manner Jagher Deo Seo is described by Mr.
Hastings to have done, but who takes care to secure to himself the
spoil, you will likewise find that such a man is safe, secure,
unpunished. Your Lordships will recollect the desolation of Dinagepore.
You will recollect that the rapacious Gunga Govind Sing, (the coadjutor
of Mr. Hastings in peculation,) out of 80,000_l._ which he had received
on the Company's account, retained 40,000_l._ for his own use, and that,
instead of being turned out of his employment and treated with rigor and
cruelty, he was elevated in Mr. Hastings's grace and favor, and never
called upon for the restoration of a penny. Observe, my Lords, the
difference in his treatment of men who have wealth to purchase impunity,
or who have secrets to reveal, and of another who has no such merit, and
is poor and insolvent.
We have shown your Lordships the effects of Mr. Hastings's government
upon the country and its inhabitants; and although I have before
suggested to you some of its effects upon the army of the Company, I
will now call your attention to a few other observations on that
subject. Your Lordships will, in the first place, be pleased to attend
to the character which he gives of this army. You have heard what he
tells you of the state of the country in which it was stationed, and of
the terror which it struck into the inhabitants. The appearance of an
English soldier was enough to strike the country people with affright
and dismay: they everywhere, he tells you, fled before them. And yet
they are the officers of this very army who are brought here as
witnesses to express the general satisfaction of the people of India. To
be sure, a man who never calls Englishmen to an account for any robbery
or injury whatever, who acquits them, upon their good intentions,
without any inquiry, will in return for this indemnity have their good
words. We are not surprised to find them coming with emulation to your
bar to declare him possessed of all virtues, and that nobody has or can
have a right to complain of him. But we, my Lords, protest against these
indemnities; we protest against their good words; we protest against
their testimonials; and we insist upon your Lordships trying him, not
upon what this or that officer says of his good conduct, but upon the
proved result of the actions tried before you. Without ascribing,
perhaps, much guilt to men who must naturally wish to favor the person
who covers their excesses, who suffers their fortunes to be made, you
will know what value to set upon their testimony. The Commons look on
those testimonies with the greatest slight, and they consider as nothing
all evidence given by persons who are interested in the very
cause,--persons who derive their fortunes from the ruin of the very
people of the country, and who have divided the spoils with the man whom
we accuse. Undoubtedly these officers will give him their good word.
Undoubtedly the Residents will give him their good word. Mr. Markham,
and Mr. Benn, and Mr. Fowke, if he had been called, every servant of the
Company, except some few, will give him the same good word, every one of
them; because, my Lords, they have made their fortunes under him, and
their conduct has not been inquired into.
But to return to the observations we were making upon the ruinous
effects in general of the successive governments which had been
established at Benares by the prisoner at your bar. These effects, he
would have you believe, arose from the want of a constitution. Why, I
again ask, did he destroy the constitution which he found established
there, or suffer it to be destroyed? But he had actually authorized Mr.
Markham to make a new, a regular, an official constitution. Did Mr.
Markham make it? No: though he professed to do it; it never was done:
and so far from there being any regular, able, efficient constitution,
you see there was an absolute and complete anarchy in the country. The
native inhabitants, deprived of their ancient government, were so far
from looking up to their new masters for protection, that, the moment
they saw the face of a soldier or of a British person in authority, they
fled in dismay, and thought it more eligible to abandon their houses to
robbery than to remain exposed to the tyranny of a British governor. Is
this what they call British dominion? Will you sanction by your judicial
authority transactions done in direct defiance of your legislative
authority? Are they so injuriously mad as to suppose your Lordships can
be corrupted to betray in your judicial capacity (the most sacred of the
two) what you have ordained in your legislative character?
My Lords, I am next to remind you what this man has had the insolence
and audacity to state at your bar. "In fact," says he, "I can adduce
very many gentlemen now in London to confirm my assertions, that the
countries of Benares and Gazipore were never within the memory of
Englishmen so well protected, so peaceably governed, or more
industriously cultivated than at the present moment."
Your Lordships know that this report of Mr. Hastings which has been read
was made in the year 1784. Your Lordships know that no step was taken,
while Mr. Hastings remained in India, for the regulation and management
of the country. If there was, let it be shown. There was no constitution
framed, nor any other means taken for the settlement of the country,
except the appointment of Ajeet Sing in the room of Durbege Sing, to
reign like him, and like him to be turned out. Mr. Hastings left India
in February, 1785; he arrived here, as I believe, in June or July
following. Our proceedings against him commenced in the sessions of
1786; and this defence was given, I believe, in the year 1787. Yet at
that time, when he could hardly have received any account from India, he
was ready, he says, to produce the evidence (and no doubt might have
done so) of many gentlemen whose depositions would have directly
contradicted what he had himself deposed of the state in which he, so
short a time before, had left the country. Your Lordships cannot suppose
that it could have recovered its prosperity within that time. We know
you may destroy that in a day which will take up years to build; we know
a tyrant can in a moment ruin and oppress: but you cannot restore the
dead to life; you cannot in a moment restore fields to cultivation; you
cannot, as you please, make the people in a moment restore old or dig
new wells: and yet Mr. Hastings has dared to say to the Commons that he
would produce persons to refute the account which we had fresh from
himself. We will, however, undertake to show you that the direct
contrary was the fact.
I will first refer you to Mr. Barlow's account of the state of trade.
Your Lordships will there find a full exposure of the total falsehood of
the prisoner's assertions. You will find that Mr. Hastings himself had
been obliged to give orders for the change of almost every one of the
regulations he had made. Your Lordships may there see the madness and
folly of tyranny attempting to regulate trade. In the printed Minutes,
page 2830, your Lordships will see how completely Mr. Hastings had
ruined the trade of the country. You will find, that, wherever he
pretended to redress the grievances which he had occasioned, he did not
take care to have any one part of his pretended redress executed. When
you consider the anarchy in which he states the country through which he
passed to have been, you may easily conceive that regulations for the
protection of trade, without the means of enforcing them, must be
nugatory.
Mr. Barlow was sent, in the years 1786 and 1787, to examine into the
state of the country. He has stated the effect of all those regulations,
which Mr. Hastings has had the assurance to represent here as prodigies
of wisdom. At the very time when our charge was brought to this House,
(it is a remarkable period, and we desire your Lordships to advert to
it,) at that time, I do not know whether it was not on the very same day
that we brought our charge to your bar, Mr. Duncan was sent by Lord
Cornwallis to examine into the state of that province. Now, my Lords,
you have Mr. Duncan's report before you, and you will judge whether or
not, by any regulation which Mr. Hastings had made, or whether through
_any_ means used by him, that country had recovered or was recovering.
Your Lordships will there find other proofs of the audacious falsehood
of his representation, that all which he had done had operated on the
minds of the inhabitants very greatly in favor of British integrity and
good government. Mr. Duncan's report will not only enable you to decide
upon what he has said himself, it will likewise enable you to judge of
the credit which is due to the gentlemen now in London whom he can
produce to confirm his assertions, that the country of Benares and
Gazipore were never, within the memory of Englishmen, so well protected
and cultivated as at the present moment.
Instead, therefore, of a speech from me, you shall hear what the country
says itself, by the report of the last commissioner who was sent to
examine it by Lord Cornwallis. The perfect credibility of his testimony
Mr. Hastings has established out of Lord Cornwallis's mouth, who, being
asked the character of Mr. Jonathan Duncan, has declared that there is
nothing he can report of the state of the country to which you ought not
to give credit. Your Lordships will now see how deep the wounds are
which tyranny and arbitrary power must make in a country where their
existence is suffered; and you will be pleased to observe that this
statement was made at a time when Mr. Hastings was amusing us with _his_
account of Benares.
_Extract of the Proceedings of the Resident at Benares, under date
the 16th February, 1788, at the Purgunnah of Gurrah Dehmah, &c.
Printed Minutes, page 2610._
"The Resident, having arrived in this purgunnah of Gurrah Dehmah
from that of Mohammedabad, is very sorry to observe that it seems
about one third at least uncultivated, owing to the mismanagement of
the few last years. The Rajah, however, promises that it shall be by
next year in a complete state of cultivation; and Tobarck Hossaine,
his aumeen, aumil, or agent, professes his confidence of the same
happy effects, saying, that he has already brought a great
proportion of the land, that lay fallow when he came into the
purgunnah in the beginning of the year, into cultivation, and that,
it being equally the Rajah's directions and his own wish, he does
not doubt of being successful in regard to the remaining part of
the waste land."
_Report, dated the 18th of February, at the Purgunnah of Bulleah._
"The Resident, having come yesterday into this purgunnah from that
of Gurrah Dehmah, finds its appearance much superior to that
purgunnah in point of cultivation; yet it is on the decline so for
that its collectible jumma will not be so much this year as it was
last, notwithstanding all the efforts of Reazel Husn, the agent of
Khulb Ali 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 the
expulsion of Cheyt Sing.
_Extract of the Proceedings of the Resident at Benares, under date
the 27th February, at the Purgunnah Sekunderpoor._
"The Resident meant to have proceeded from this place to Cossimabad;
but understanding that the village of Ressenda, the capital of the
purgunnah of Susknesser, is situated at three coss' distance, and
that many _rahdarry_ collections are there exacted, the zemindars
and ryots being, it seems, all one body of Rajpoots, who affect to
hold themselves in some sort independent of the Rajah's government,
paying only a _mokurrery_, or fixed jumma, (which it may be supposed
is not overrated,) and managing their interior concerns as they
think fit, the Resident thought it proper on this report to deviate
a little from his intended route, by proceeding this day to
Ressenda, where he accordingly arrived in the afternoon; and the
remaining part of the country near the road through Sekunderpoor,
from Nuggurha to Seundah, appearing nearly equally waste with the
former part, as already noticed in the proceedings of the 26th
instant.
"The Rajah is therefore desired to appoint a person to bring those
waste lands into cultivation, in like manner as he has done in
Khereed, with this difference or addition in his instructions,--that
he subjoin in those to the Aband Kar, or manager, of the
re-cultivation of Sekunderpoor, the rates at which he is authorized
to grant pottahs for the various kinds of land; and it is
recommended to him to make these rates even somewhat lower than he
may himself think strictly conformable to justice, reporting the
particulars to the Resident.
"The Rajah is also desired to prepare and transmit a table of
similar rates to the Aband Kar of purgunnah Khereed.
(Signed) "JON^N DUNCAN, _Resident_.
"BENARES, the 12th September, 1788."
Here your Lordships find, in spite of Mr. Hastings himself, in spite of
all the testimonies which he has called, and of all the other
testimonies which he would have called, that his own account of the
matter is confirmed against his own pretended evidence; you find his own
written account confirmed in a manner not to be doubted: and the only
difference between his account and this is, that the people did not fly
from Mr. Duncan, when he approached, as they fled from Mr. Hastings.
They did not feel any of that terror at the approach of a person from
the beneficent government of Lord Cornwallis with which they had been
entirely filled at the appearance of the prisoner at your bar. From him
they fled in dismay. They fled from his very presence, as from a
consuming pestilence, as from something far worse than drought and
famine; they fled from him as a cruel, corrupt, and arbitrary governor,
which is worse than any other evil that ever afflicted mankind.
You see, my Lords, in what manner the country has been wasted and
destroyed; and you have seen, by the date of these measures, that they
have happened within a few years, namely, since the expulsion of Rajah
Cheyt Sing. There begins the era of calamity. Ask yourselves, then,
whether you will or can countenance the acts which led directly and
necessarily to such consequences. Your Lordships will mark what it is to
oppress and expel a cherished individual from his government, and
finally to subvert it. Nothing stands after him; down go all order and
authority with him; ruin and desolation fall upon the country; the
fields are uncultivated, the wells are dried up. The people, says Mr.
Duncan, promised, indeed, some time or other, under some other
government, to do something. They will again cultivate the lands, when
they can get an assurance of security. My Lords, judge, I pray you,
whether the House of Commons, when they had read the account which Mr.
Hastings has himself given of the dreadful consequences of his
proceedings, when they had read the account given by Mr. Duncan of an
uncultivated country as far as the eye could reach, would not have shown
themselves unworthy to represent not only the Commons of Great Britain,
but the meanest village in it, if they had not brought this great
criminal before you, and called upon your Lordships to punish him. This
ruined country, its desolate fields and its undone inhabitants, all call
aloud for British justice, all call for vengeance upon the head of this
execrable criminal.
Oh! but we ought to be tender towards his personal character,--extremely
cautious in our speech; we ought not to let indignation loose.--My
Lords, we do let our indignation loose; we cannot bear with patience
this affliction of mankind. We will neither abate our energy, relax in
our feelings, nor in the expressions which those feelings dictate.
Nothing but corruption like his own could enable any man to see such a
scene of desolation and ruin unmoved. We feel pity for the works of God
and man; we feel horror for the debasement of human nature; and feeling
thus, we give a loose to our indignation, and call upon your Lordships
for justice.
Strange as it may appear to your Lordships, there remains to be stated
an aggravation of his crimes, and of his victims' misery. Would you
consider it possible, my Lords, that there could be an aggravation of
such a case as you have heard? Would you think it possible for a people
to suffer more than the inhabitants of Benares have suffered, from the
noble possessor of the splendid mansion down to the miserable tenants of
the cottage and the hut? Yes, there is a state of misery, a state of
degradation, far below all that you have yet heard. It is, my Lords,
that these miserable people should come to your Lordships' bar, and
declare that they have never felt one of those grievances of which they
complain; that not one of those petitions with which they pursued Mr.
Hastings had a word of truth in it; that they felt nothing under his
government but ease, tranquillity, joy, and happiness; that every day
during his government was a festival, and every night an illumination
and rejoicing. The addresses which contain these expressions of
satisfaction have been produced at your bar, and have been read to your
Lordships. You must have heard with disgust, at least, these flowers of
Oriental rhetoric, penned at ease by dirty hireling moonshees at
Calcutta, who make these people put their seals, not to declarations of
their ruin, but to expressions of their satisfaction. You have heard
what he himself says of the country; you have heard what Mr. Duncan says
of it; you have heard the cries of the country itself calling for
justice upon him: and now, my Lords, hear what he has made these people
say. "We have heard that the gentlemen in England are displeased with
Mr. Hastings, on suspicion that he oppressed us, the inhabitants of
this place, took our money by deceit and force, and ruined the country."
They then declare solemnly before God, according to their different
religions, that Mr. Hastings "distributed protection and security to
religion, and kindness and peace to all. He is free," say they, "from
the charge of embezzlement and fraud, and his heart is void of
covetousness and avidity. During the period of his government no one
ever experienced from him other than protection and justice, never
having felt hardships from him; nor did the poor ever know the weight of
an oppressive hand from him. Our characters and reputation have been
always guarded in quiet from attack, by the vigilance of his prudence
and foresight, and by the terror of his justice."
Upon my word, my Lords, the paragraphs are delightful. Observe, in this
translation from the Persian there is all the fluency of an English
paragraph well preserved. All I can say is, that these people of Benares
feel their joy, comfort, and satisfaction in swearing to the falseness
of Mr. Hastings's representation against himself. In spite of his own
testimony, they say, "He secured happiness and joy to us; he
reëstablished the foundation of justice; and we at all times, during his
government, lived in comfort and passed our days in peace." The shame of
England and of the English government is here put upon your Lordships'
records. Here you have, just following that afflicting report of Mr.
Duncan's, and that account of Mr. Hastings himself, in which he said the
inhabitants fled before his face, the addresses of these miserable
people. He dares to impose upon your eyesight, upon your common sense,
upon the plain faculties of mankind. He dares, in contradiction to all
his own assertions, to make these people come forward and swear that
they have enjoyed nothing but complete satisfaction and pleasure during
the whole time of his government.
My Lords, I have done with this business, for I have now reached the
climax of degradation and suffering, after moving step by step through
the several stages of tyranny and oppression. I have done with it, and
have only to ask, In what country do we live, where such a scene can by
any possibility be offered to the public eye?
Let us here, my Lords, make a pause.--You have seen what Benares was
under its native government. You have seen the condition in which it was
left by Cheyt Sing, and you have seen the state in which Mr. Hastings
left it. The rankling wounds which he has inflicted upon the country,
and the degradation to which the inhabitants have been subjected, have
been shown to your Lordships. You have now to consider whether or not
you will fortify with your sanction any of the detestable principles
upon which the prisoner justifies his enormities.
My Lords, we shall next come to another dependent province, when I shall
illustrate to your Lordships still further the effects of Mr. Hastings's
principles. I allude to the province of Oude,--a country which, before
our acquaintance with it, was in the same happy and flourishing
condition with Benares, and which dates its period of decline and misery
from the time of our intermeddling with it. The Nabob of Oude was
reduced, as Cheyt Sing was, to be a dependant on the Company, and to be
a greater dependant than Cheyt Sing, because it was reserved in Cheyt
Sing's agreement that we should not interfere in his government. We
interfered in every part of the Nabob's government; we reduced his
authority to nothing; we introduced a perfect scene of anarchy and
confusion into the country, where there was no authority but to rob and
destroy.
I have not strength at present to proceed; but I hope I shall soon be
enabled to do so. Your Lordships cannot, I am sure, calculate from your
own youth and strength; for I have done the best I can, and find myself
incapable just at this moment of going any further.
SPEECH
IN
GENERAL REPLY.
FOURTH DAY: THURSDAY, JUNE 5, 1794.
My Lords,--When I last had the honor of addressing your Lordships from
this place, my want of strength obliged me to conclude where the
patience of a people and the prosperity of a country subjected by solemn
treaties to British government had concluded. We have left behind us the
inhabitants of Benares, after having seen them driven into rebellion by
tyranny and oppression, and their country desolated by our misrule. Your
Lordships, I am sure, have had the map of India before you, and know
that the country so destroyed and so desolated was about one fifth of
the size of England and Wales in geographical extent, and equal in
population to about a fourth. Upon this scale you will judge of the
mischief which has been done.
My Lords, we are now come to another devoted province: we march from
desolation to desolation; because we follow the steps of Warren
Hastings, Esquire, Governor-General of Bengal. You will here find the
range of his atrocities widely extended; but before I enter into a
detail of them, I have one reflection to make, which I beseech your
Lordships to bear in mind throughout the whole of this deliberation. It
is this: you ought never to conclude that a man must necessarily be
innoxious because he is in other respects insignificant. You will see
that a man bred in obscure, vulgar, and ignoble occupations, and trained
in sordid, base, and mercenary habits, is not incapable of doing
extensive mischief, because he is little, and because his vices are of a
mean nature. My Lords, we have shown to you already, and we shall
demonstrate to you more clearly in future, that such minds placed in
authority can do more mischief to a country, can treat all ranks and
distinctions with more pride, insolence, and arrogance, than those who
have been born under canopies of state and swaddled in purple: you will
see that they can waste a country more effectually than the proudest and
most mighty conquerors, who, by the greatness of their military talents,
have first subdued and afterwards plundered nations.
The prisoner's counsel have thought proper to entertain your Lordships,
and to defend their client, by comparing him with the men who are said
to have erected a pyramid of ninety thousand human heads. Now look back,
my Lords, to Benares; consider the extent of country laid waste and
desolated, and its immense population; and then see whether famine may
not destroy as well as the sword, and whether this man is not as well
entitled to erect his pyramid of ninety thousand heads as any terrific
tyrant of the East. We follow him now to another theatre, the
territories of the Nabob of Oude.
My Lords, Oude, (together with the additions made to it by Sujah
Dowlah,) in point of geographical extent, is about the size of England.
Sujah Dowlah, who possessed this country as Nabob, was a prince of a
haughty character,--ferocious in a high degree towards his enemies, and
towards all those who resisted his will. He was magnificent in his
expenses, yet economical with regard to his resources,--maintaining his
court in a pomp and splendor which is perhaps unknown to the sovereigns
of Europe. At the same time he was such an economist, that from an
inconsiderable revenue, at the beginning of his reign, he was annually
enabled to make great savings. He thus preserved, towards the end of it,
his people in peace, tranquillity, and order; and though he was an
arbitrary prince, he never strained his revenue to such a degree as to
lose their affections while he filled his exchequer. Such appears to
have been the true character of Sujah Dowlah: your Lordships have heard
what is the character which the prisoner at your bar and his counsel
have thought proper to give you of him.
Surely, my Lords, the situation of the great, as well as of the lower
ranks in that country, must be a subject of melancholy reflection to
every man. Your Lordships' compassion will, I presume, lead you to feel
for the lowest; and I hope that your sympathetic dignity will make you
consider in what manner the princes of this country are treated. They
have not only been treated at your Lordships' bar with indignity by the
prisoner, but his counsel do not leave their ancestors to rest quietly
in their graves. They have slandered their families, and have gone into
scandalous history that has no foundation in facts whatever.
Your Lordships have seen how he attempted to slander the ancestors of
Cheyt Sing, to deny that they were zemindars; and yet he must have known
from printed books, taken from the Company's records, the utter falsity
of his declaration. You need only look into Mr. Verelst's Appendix, and
there you will see that that country has always been called the
Zemindary of Bulwant Sing. You will find him always called the Zemindar;
it was the known, acknowledged name, till this gentleman thought proper
at the bar of the House of Commons to deny that he was a zemindar, and
to assert that he was only an aumil. He slanders the pedigree of this
man as mean and base, yet he was not ashamed to take from him
twenty-three thousand pounds. In like manner he takes from Asoph ul
Dowlah a hundred thousand pounds, which he would have appropriated to
himself, and then directs his counsel to rake up the slander of Dow's
History, a book of no authority, a book that no man values in any
respect or degree. In this book they find that romantic, absurd, and
ridiculous story upon which an honorable fellow Manager of mine, who is
much more capable than I am of doing justice to the subject, has
commented with his usual ability: I allude to that story of spitting on
the beard,--the mutual compact to poison one another. That Arabian tale,
fit only to form a ridiculous tragedy, has been gravely mentioned to
your Lordships for the purpose of slandering the pedigree of this Vizier
of Oude, and making him vile in your Lordships' eyes. My honorable
friend has exposed to you the absurdity of these stories, but he has not
shown you the malice of their propagators. The prisoner and his counsel
have referred to Dow's History, who calls this Nabob "the more infamous
son of an infamous Persian peddler." They wish that your Lordships
should consider him as a person vilely born, ignominiously educated, and
practising a mean trade, in order that, when it shall be proved that he
and his family were treated with every kind of indignity and contempt by
the prisoner at your bar, the sympathy of mankind should be weakened.
Consider, my Lords, the monstrous perfidy and ingratitude of this man,
who, after receiving great favors from the Nabob, is not satisfied with
oppressing his offspring, but goes back to his ancestors, tears them out
of their graves, and vilifies them with slanderous aspersions. My Lords,
the ancestor of Sujah Dowlah was a great prince,--certainly a
subordinate prince, because he was a servant of the Great Mogul, who was
well called King of Kings, for he had in his service persons of high
degree. He was born in Persia; but was not, as is falsely said, _the
more infamous son of an infamous Persian peddler_. Your Lordships are
not unacquainted with the state and history of India; you therefore know
that Persia has been the nursery of all the Mahometan nobility of India:
almost everything in that country which is not of Gentoo origin is of
Persian; so much so, that the Persian language is the language of the
court, and of every office from the highest to the lowest. Among these
noble Persians, the family of the Nabob stands in the highest degree.
His father's ancestors were of noble descent, and those of his mother,
Munny Begum, more eminently and more illustriously so. This
distinguished family, on no better authority than that of the historian
Dow, has been slandered by the prisoner at your bar, in order to destroy
the character of those whom he had already robbed of their substance.
Your Lordships will have observed with disgust how the Dows and the
Hastings, and the whole of that tribe, treat their superiors,--in what
insolent language they speak of them, and with what pride and indignity
they trample upon the first names and the first characters in that
devoted country.
But supposing it perfectly true that this man was "the more infamous son
of an infamous Persian peddler," he had risen to be the secondary
sovereign of that country. He had a revenue of three millions six
hundred thousand pounds sterling: a vast and immense revenue; equal,
perhaps, to the clear revenue of the King of England. He maintained an
army of one hundred and twenty thousand men. He had a splendid court;
and his country was prosperous and happy. Such was the situation of
Sujah Dowlah, the Nabob of Oude, and such the condition of Oude under
his government. With his pedigree, I believe, your Lordships will think
we have nothing to do in the cause now before us. It has been pressed
upon us; and this marks the indecency, the rancor, the insolence, the
pride and tyranny which the Dows and the Hastings, and the people of
that class and character, are in the habit of exercising over the great
in India.
My Lords, I shall be saved a great deal of trouble in proving to you the
flourishing state of Oude, because the prisoner admits it as largely as
I could wish to state it; and what is more, he admits, too, the truth of
our statement of the condition to which it is now reduced,--but I shall
not let him off so easily upon this point. He admits, too, that it was
left in this reduced and ruined state at the close of his
administration. In his Defence he attributes the whole mischief
generally to a faulty system of government. My Lords, systems never make
mankind happy or unhappy, any further than as they give occasions for
wicked men to exercise their own abominable talents, subservient to
their own more abominable dispositions. "The system," says Mr. Hastings,
"was bad; but I was not the maker of it." Your Lordships have seen him
apply this mode of reasoning to Benares, and you will now see that he
applies it to Oude. "I came," says he, "into a bad system; that system
was not of my making, but I was obliged to act according to the spirit
of it."
Now every honest man would say,--"I came to a bad system: I had every
facility of abusing my power, I had every temptation to peculate, I had
every incitement to oppress, I had every means of concealment, by the
defects of the system; but I corrected that evil system by the goodness
of my administration, by the prudence, the energy, the virtue of my
conduct." This is what all the rest of the world would say: but what
says Mr. Hastings? "A bad system was made to my hands; I had nothing to
do in making it. I was altogether an involuntary instrument, and obliged
to execute every evil which that system contained." This is the line of
conduct your Lordships are called to decide upon. And I must here again
remind you that we are at an issue of law. Mr. Hastings has avowed a
certain set of principles upon which he acts; and your Lordships are
therefore to judge whether his acts are justifiable because he found an
evil system to act upon, or whether he and all governors upon earth have
not a general good system upon which they ought to act.
The prisoner tells you, my Lords, that it was in consequence of this
evil system, that the Nabob, from being a powerful prince, became
reduced to a wretched dependant on the Company, and subject to all the
evils of that degraded state,--subject to extortion, to indignity, to
oppression. All these your Lordships are called upon to sanction; and
because they may be connected with an existing system, you are to
declare them to be an allowable part of a code for the government of
British India.
In the year 1775, that powerful, magnificent, and illustrious prince,
Sujah Dowlah, died in possession of the country of Oude. He had long
governed a happy and contented people, and, if we except the portion of
tyranny which we admit he really did exercise towards some few
individuals who resisted his power, he was a wise and beneficent
governor. This prince died in the midst of his power and fortune,
leaving somewhere about fourscore children. Your Lordships know that the
princes of the East have a great number of wives; and we know that these
women, though reputed of a secondary rank, are yet of a very high
degree, and honorably maintained according to the customs of the East.
Sujah Dowlah had but one lawful wife: he had by her but one lawful
child, Asoph ul Dowlah. He had about twenty-one male children, the
eldest of whom was a person whom you have heard of very often in these
proceedings, called Saadut Ali. Asoph ul Dowlah, being the sole
legitimate son, had all the pretensions to succeed his father, as
Subahdar of Oude, which could belong to any person under the Mogul
government.
Your Lordships will distinguish between a Zemindar, who is a perpetual
landholder, the hereditary proprietor of an estate, and a Subahdar, who
derives from his master's will and pleasure all his employments, and
who, instead of having the jaghiredars subject to his supposed arbitrary
will, is himself a subject, and must have his sovereign's patent for
his place. Therefore, strictly and properly speaking, there is no
succession in the office of Subahdar. At this time the Company, who
alone could obtain the _sunnuds_ [_sunnud?_], or patent, from the Great
Mogul, upon account of the power they possessed in India, thought, and
thought rightly, that with an officer who had no hereditary power there
could be no hereditary engagements,--and that in their treaty with Asoph
ul Dowlah, for whom they had procured the sunnud from the Great Mogul,
they were at liberty to propose their own terms, which, if honorable and
mutually advantageous to the new Subahdar and to the Company, they had a
right to insist upon. A treaty was therefore concluded between the
Company and Asoph ul Dowlah, in which the latter stipulated to pay a
fixed subsidy for the maintenance of a certain number of troops, by
which the Company's finances were greatly relieved and their military
strength greatly increased.
This treaty did not contain one word which could justify any
interference in the Nabob's government. That evil system, as Mr.
Hastings calls it, is not even mentioned or alluded to; nor is there, I
again say, one word which authorized Warren Hastings, or any other
person whatever, to interfere in the interior affairs of his country. He
was legally constituted Viceroy of Oude; his dignity of Vizier of the
Empire, with all the power which that office gave him, derived from and
held under the Mogul government, he legally possessed; and this evil
system, which Mr. Hastings says led him to commit the enormities of
which you shall hear by-and-by, was neither more nor less than what I
have now stated.
But, my Lords, the prisoner thinks, that, when, under any pretence, any
sort of means could be furnished of interfering in the government of the
country, he has a right to avail himself of them, to use them at his
pleasure, and to govern by his own arbitrary will. The Vizier, he says,
by this treaty was reduced to a state of vassalage; and he makes this
curious distinction in proof of it. It was, he says, an optional
vassalage: for, if he chose to get rid of our troops, he might do so and
be free; if he had not a mind to do that, and found a benefit in it,
then he was a vassal. But there is nothing less true. Here is a person
who keeps a subsidiary body of your troops, which he is to pay for you;
and in consequence of this Mr. Hastings maintains that he becomes a
vassal. I shall not dispute whether vassalage is optional or by force,
or in what way Mr. Hastings considered this prince as a vassal of the
Company. Let it be as he pleased. I only think it necessary that your
Lordships should truly know the actual state of that country, and the
ground upon which Mr. Hastings stood. Your Lordships will find it a
fairy land, in which there is a perpetual masquerade, where no one thing
appears as it really is,--where the person who seems to have the
authority is a slave, while the person who seems to be the slave has the
authority. In that ambiguous government everything favors fraud,
everything favors peculation, everything favors violence, everything
favors concealment. You will therefore permit me to show to you what
were the principles upon which Mr. Hastings appears, according to the
evidence before you, to have acted,--what the state of the country was,
according to his conceptions of it; and then you will see how he applied
those principles to that state.
"The means by which our government acquired this influence," says Mr.
Hastings, "and its right to exercise it, will require a previous
explanation." He then proceeds,--"With his death [Sujah Dowlah's] a new
political system commenced, and Mr. Bristow was constituted the
instrument of its formation, and the trustee for the management of it.
The Nabob Asoph ul Dowlah was deprived of a large part of his
inheritance,--I mean the province of Benares, attached by a very feeble
and precarious tenure to our dominions; the army fixed to a permanent
station in a remote line of his frontier, with an augmented and
perpetual subsidy; a new army, amphibiously composed of troops in his
service and pay, commanded by English officers of our own nomination,
for the defence of his new conquests; and his own natural troops
annihilated, or alienated by the insufficiency of his revenue for all
his disbursements, and the prior claims of those which our authority or
influence commanded: in a word, he became a vassal of the government;
but he still possessed an ostensible sovereignty. His titular rank of
Vizier of the Empire rendered him a conspicuous object of view to all
the states and chiefs of India; and on the moderation and justice with
which the British government in Bengal exercised its influence over him
many points most essential to its political strength and to the honor of
the British name depended."
Your Lordships see that the system which is supposed to have reduced him
to vassalage did not make, as he contends, a violent exercise of our
power necessary or proper; but possessing, as the Nabob did, that high
nominal dignity, and being in that state of vassalage, as Mr. Hastings
thought proper to term it, though there is no vassalage mentioned in
the treaty,--being, I say, in that situation of honor, credit, and
character, sovereign of a country as large as England, yielding an
immense revenue, and flourishing in trade, certainly our honor depended
upon the use we made of that influence which our power gave us over him;
and we therefore press it upon your Lordships, that the conduct of Mr.
Hastings was such as dishonored this nation.
He proceeds,--"This is not a place, nor have I room in it, to prove,
what I shall here content myself with affirming, that, by a sacred and
undeviating observance of every principle of public faith, the British
dominion might have by this time acquired the means of its extension,
through a virtual submission to its authority, to every region of
Hindostan and Deccan. I am not sure that I should advise such a design,
were it practicable, which at this time it certainly is not; and I very
much fear that the limited formation of such equal alliances as might be
useful to our present condition, and conduce to its improvement, is
become liable to almost insurmountable difficulties: every power in
India must wish for the support of ours, but they all dread the
connection. The subjection of Bengal, and the deprivation of the family
of Jaffier Ali Khân, though an effect of inevitable necessity, the
present usurpations of the rights of the Nabob Wallau Jau in the
Carnatic, and the licentious violations of the treaty existing between
the Company and the Nabob Nizam ul Dowlah, though checked by the
remedial interposition of this government, stand as terrible precedents
against us; the effects of our connection with the Nabob Asoph ul Dowlah
had a rapid tendency to the same consequences, and it has been my
invariable study to prevent it."
Your Lordships will remember that the counsel at the bar have said that
they undertook the defence of Warren Hastings, not in order to defend
him, but to rescue the British character from the imputations which have
been laid upon it by the Commons of Great Britain. They have said that
the Commons of Great Britain have slandered their country, and have
misrepresented its character; while, on the contrary, the servants of
the Company have sustained and maintained the dignity of the English
character, have kept its public faith inviolate, preserved the people
from oppression, reconciled every government to it in India, and have
made every person under it prosperous and happy.
My Lords, you see what this man says himself, when endeavoring to prove
his own innocence. Instead of proving it by the facts alleged by his
counsel, he declares that by preserving good faith you might have
conquered India, the most glorious conquest that was ever made in the
world; that all the people want our assistance, but dread our
connection. Why? Because our whole conduct has been one perpetual tissue
of perfidy and breach of faith with every person who has been in
alliance with us, in any mode whatever. Here is the man himself who says
it. Can we bear that this man should now stand up in this place as the
assertor of the honor of the British nation against us, who charge this
dishonor to have fallen upon us by him, through him, and during his
government?
But all the mischief, he goes on to assert, was in the previous system,
in the formation of which he had no share,--the system of 1775, when
the first treaty with the Nabob was made. "That system," says he, "is
not mine; it was made by General Clavering, Colonel Monson, and Mr.
Francis." So it was, my Lords. It did them very great honor, and I
believe it ever will do them honor, in the eyes of the British nation,
that they took an opportunity, without the violation of faith, without
the breach of any one treaty, and without injury to any person, to do
great and eminent services to the Company. But Mr. Hastings disclaims
it, unnecessarily disclaims it, for no one charges him with it. What we
charge him with is the abuse of that system. To one of these abuses I
will now call your Lordships' attention. Finding, soon after his
appointment to the office of Governor-General, that the Nabob was likely
to get into debt, he turns him into a vassal, and resolves to treat him
as such. You will observe that this is not the only instance in which,
upon a failure of payment, the defaulter becomes directly a vassal. You
remember how Durbege Sing, the moment he fell into an arrear of tribute,
became a vassal, and was thrown into prison, without any inquiry into
the causes which occasioned that arrear. With respect to the Nabob of
Oude, we assert, and can prove, that his revenue was 3,600,000_l._ at
the day of his father's death; and if the revenue fell off afterwards,
there was abundant reason to believe that he possessed in abundance the
means of paying the Company every farthing.
Before I quit this subject, your Lordships will again permit me to
reprobate the malicious insinuations by which Mr. Hastings has thought
proper to slander the virtuous persons who are the authors of that
system which he complains of. They are men whose characters this country
will ever respect, honor, and revere, both the living and the dead,--the
dead for the living, and the living for the dead. They will altogether
be revered for a conduct honorable and glorious to Great Britain, whilst
their names stand as they now do, unspotted by the least imputation of
oppression, breach of faith, perjury, bribery, or any other fraud
whatever. I know there was a faction formed against them upon that very
account. Be corrupt, you have friends; stem the torrent of corruption,
you open a thousand venal mouths against you. Men resolved to do their
duty must be content to suffer such opprobrium, and I am content; in the
name of the living and of the dead, and in the name of the Commons, I
glory in our having appointed some good servants at least to India.
But to proceed. "This system was not," says he, "of my making." You
would, then, naturally imagine that the persons who made this abominable
system had also made some tyrannous use of it. Let us see what use they
made of it during the time of their majority in the Council. There was
an arrear of subsidy due from the Nabob. How it came into arrear we
shall consider hereafter. The Nabob proposed to pay it by taxing the
jaghires of his family, and taking some money from the Begum. This was
consented to by Mr. Bristow, at that time Resident for the Company in
Oude; and to this arrangement Asoph ul Dowlah and his advisers lent a
willing ear. What did Mr. Hastings then say of this transaction? He
called it a violent assumption of power on the part of the Council. He
did not, you see, then allow that a bad system justified any persons
whatever in an abuse of it. He contended that it was a violent attack
upon the rights and property of the parties from whom the money was to
be taken, that it had no ground or foundation in justice whatever, and
that it was contrary to every principle of right and equity.
Your Lordships will please to bear in mind, that afterwards, by his own
consent, and the consent of the rest of the Council, this business was
compromised between the son, the mother, and their relations. A very
great sum of money, which was most useful to the Company at that period,
was raised by a family compact and arrangement among themselves. This
proceeding was sanctioned by the Company, Mr. Hastings himself
consenting; and a pledge was given to the Begums and family of the
Nabob, that this should be the last demand made upon them,--that it
should be considered, not as taken compulsively, but as a friendly and
amicable donation. They never admitted, nor did the Nabob ever contend,
that he had any right at all to take this money from them. At that time
it was not Mr. Hastings's opinion that the badness of the system would
justify any violence as a consequence of it; and when the advancement of
the money was agreed to between the parties, as a family and amicable
compact, he was as ready as anybody to propose and sanction a regular
treaty between the parties, that all claims on one side and all kind of
uneasiness on the other should cease forever, under the guardianship of
British faith.
Mr. Hastings, as your Lordships remember, has conceded that British
faith is the support of the British empire; that, if that empire is to
be maintained, it is to be maintained by good faith; that, if it is to
be propagated, it is to be propagated by public faith; and that, if the
British empire falls, it will be through perfidy and violence. These are
the principles which he assumes, when he chooses to reproach others. But
when he has to defend his own perfidy and breaches of faith, then, as
your Lordships will find set forth in his defence before the House of
Commons on the Benares charge, he denies, or at least questions, the
validity of any treaty that can at present be made with India. He
declares that he considers all treaties as being weakened by a
considerable degree of doubt respecting their validity and their binding
force, in such a state of things as exists in India.
Whatever was done, during that period of time to which I have alluded,
by the majority of the Council, Mr. Hastings considered himself as
having nothing to do with, on the plea of his being a dissentient
member: a principle which, like other principles, I shall take some
notice of by-and-by. Colonel Monson and General Clavering died soon
after, and Mr. Hastings obtained a majority in the Council, and was
then, as he calls it, restored to his authority; so that any evil that
could be done by evil men under that evil system could have lasted but
for a very short time indeed. From that moment, Mr. Hastings, in my
opinion, became responsible for every act done in Council, while he was
there, which he did not resist, and for every engagement which he did
not oppose. For your Lordships will not bear that miserable jargon which
you have heard, shameful to office and to official authority, that a
man, when, he happens not to find himself in a majority upon any
measure, may think himself excusable for the total neglect of his duty;
that in such a situation he is not bound to propose anything that it
might be proper to propose, or to resist anything that it might be
proper to resist. What would be the inference from such an assumption?
That he can never act in a commission; that, unless a man has the
supreme power, he is not responsible for anything he does or neglects to
do. This is another principle which your Lordships will see constantly
asserted and constantly referred to by Mr. Hastings. Now I do contend,
that, notwithstanding his having been in a minority, if there was
anything to be done that could prevent oppressive consequences, he was
bound to do that thing; and that he was bound to propose every possible
remedial measure. This proud, rebellious proposition against the law,
that any one individual in the Council may say that he is responsible
for nothing, because he is not the whole Council, calls for your
Lordships' strongest reprobation.
I must now beg leave to observe to you, that the treaty was made (and I
wish your Lordships to advert to dates) in the year 1775; Mr. Hastings
acquired the majority in something more than a year afterwards; and
therefore, supposing the acts of the former majority to have been ever
so iniquitous, their power lasted but a short time. From the year 1776
to 1784 Mr. Hastings had the whole government of Oude in himself, by
having the majority in the Council. My Lords, it is no offence that a
Governor-General, or anybody else, has the majority in the Council. To
have the government in himself is no offence. Neither was it any
offence, if you please, that the Nabob was virtually a vassal to the
Company, as he contends he was. For the question is not, what a
Governor-General _may_ do, but what Warren Hastings did do. He who has a
majority in Council, and records his own acts there, may justify these
acts as legal: I mean the mode is legal. But as he executes whatever he
proposes as Governor-General, he is solely responsible for the _nature_
of the acts themselves.
I shall now show your Lordships that Mr. Hastings, finding, as he
states, the Nabob to be made by the treaty in 1775 eventually a vassal
to the Company, has thought proper to make him a vassal to himself, for
his own private purposes. Your Lordships will see what corrupt and
iniquitous purposes they were. In the first place, in order to
annihilate in effect the Council, and to take wholly from them their
control in the affairs of Oude, he suppressed (your Lordships will find
the fact proved in your minutes) the Persian correspondence, which was
the whole correspondence of Oude. This whole correspondence was secreted
by him, and kept from the Council. It was never communicated to the
Persian translator of the Company, Mr. Colebrooke, who had a salary for
executing that office. It was secreted, and kept in the private cabinet
of Mr. Hastings; from the period of 1781 to 1785 no part of it was
communicated to the Council. There is nothing, as your Lordships have
often found in this trial, that speaks for the man like himself; there
is nothing will speak for his conduct like the records of the Company.
"_Fort William, 19th February, 1785._
"At a Council: present, the Honorable John Macpherson, Esquire,
Governor-General, President, and John Stables, Esquire.
* * * * *
"The Persian Translator, attending in obedience to the Board's
orders, reports, that, since the end of the year 1781, there have
been no books of correspondence kept in his office, because, from
that time until the late Governor-General's departure, he was
employed but once by the Governor-General to manage the
correspondence, during a short visit which Major Davy, the military
Persian interpreter, paid by the Governor's order to Lucknow; that,
during that whole period of three years, he remained entirely
ignorant of the correspondence, as he was applied to on no occasion,
except for a few papers sometimes sent to him by the secretaries,
which he always returned to them as soon as translated.
"The Persian Translator has received from Mr. Scott, since the late
Governor-General's departure, a trunk containing English draughts
and translations and the Persian originals of letters and papers,
with three books in the Persian language containing copies of
letters written between August, 1782, and January, 1785; and if the
Board should please to order the secretaries of the general
department to furnish him with copies of all translations and
draughts recorded in their Consultations between the 1st of January,
1782, and the 31st of January, 1785, he thinks that he should be
able, with what he has found in Captain Scott's trunk, to make up
the correspondence for that period.
(Signed) "EDWARD COLEBROOKE,
"_Persian Translator._"
Hear, then, my Lords, what becomes of the records of the Company, which
were to be the vouchers for every public act,--which were to show
whether, in the Company's transactions, agreements, and treaties with
the native powers, the public faith was kept or not. You see them all
crammed into Mr. Scott's trunk: a trunk into which they put what they
please, take out what they please, suppress what they please, or thrust
in whatever will answer their purpose. The records of the
Governor-General and Council of Bengal are kept in Captain Jonathan
Scott's trunk; this trunk is to be considered as the real and true
channel of intelligence between the Company and the country powers. But
even this channel was not open to any member of the Council, except Mr.
Hastings; and when the Council, for the first time, daring to think for
themselves, call upon the Persian Translator, he knows nothing about it.
We find that it is given into the hands of a person nominated by Mr.
Hastings,--Major Davy. What do the Company know of him? Why, he was Mr.
Hastings's private secretary. In this manner the Council have been
annihilated during all these transactions, and have no other knowledge
of them than just what Mr. Hastings and his trunk-keeper thought proper
to give them. All, then, that we know of these transactions is from the
miserable, imperfect, garbled correspondence.
But even if these papers contained a full and faithful account of the
correspondence, what we charge is its not being delivered to the Council
as it occurred from time to time. Mr. Hastings kept the whole government
of Oude in his own hands; so that the Council had no power of judging
his acts, of checking, controlling, advising, or remonstrating. It was
totally annihilated by him; and we charge, as an act of treason and
rebellion against the act of Parliament by which he held his office, his
depriving the Council of their legitimate authority, by shutting them
out from the knowledge of all affairs,--except, indeed, when he thought
it expedient, for his own justification, to have their nominal
concurrence or subsequent acquiescence in any of his more violent
measures.
Your Lordships see Mr. Hastings's system, a system of concealment, a
system of turning the vassals of the Company into his own vassals, to
make them contributory, not to the Company, but to himself. He has
avowed this system in Benares; he has avowed it in Oude. It was his
constant practice. Your Lordships see in Oude he kept a correspondence
with Mr. Markham for years, and did alone all the material acts which
ought to have been done in Council. He delegated a power to Mr. Markham
which he had not to delegate; and you will see he has done the same in
every part of India.
We first charge him not only with acting without authority, but with a
strong presumption, founded on his concealment, of intending to act
mischievously. We next charge his concealing and withdrawing
correspondence, as being directly contrary to the orders of the Court of
Directors, the practice of his office, and the very nature and existence
of the Council in which he was appointed to preside. We charge this as a
substantive crime, and as the forerunner of the oppression, desolation,
and ruin of that miserable country.
Mr. Hastings having thus rendered the Council blind and ignorant, and
consequently fit for subserviency, what does he next do? I am speaking,
not with regard to the time of his particular acts, but with regard to
the general spirit of the proceedings. He next flies in the face of the
Company upon the same principle on which he removed Mr. Fowke from
Benares. "I removed _him_ on political grounds," says he, "against the
orders of the Court of Directors, because I thought it necessary that
the Resident should be a man of my own nomination and confidence." At
Oude he proceeds on the same principle. Mr. Bristow had been nominated
to the office of Resident by the Court of Directors. Mr. Hastings, by an
act of Parliament, was ordered to obey the Court of Directors. He
positively refuses to receive Mr. Bristow, for no other reason that we
know of but because he was nominated by the Court of Directors; he
defies the Court, and declares in effect that they shall not govern that
province, but that he will govern it by a Resident of his own.
Your Lordships will mark his progress in the establishment of that new
system, which, he says, he had been obliged to adopt by the evil system
of his predecessors. First, he annihilates the Council, formed by an act
of Parliament, and by order of the Court of Directors. In the second
place, he defies the order of the Court, who had the undoubted
nomination of all their own servants, and who ordered him, under the
severest injunction, to appoint Mr. Bristow to the office of Resident in
Oude. He for some time refused to nominate Mr. Bristow to that office;
and even when he was forced, against his will, to permit him for a while
to be there, he sent Mr. Middleton and Mr. Johnson, who annihilated Mr.
Bristow's authority so completely that no one public act passed through
his hands.
After he had ended this conflict with the Directors, and had entirely
shook off their authority, he resolved that the native powers should
know that they were not to look to the Court of Directors, but to look
to his arbitrary will in all things; and therefore, to the astonishment
of the world, and as if it were designedly to expose the nakedness of
the Parliament of Great Britain, to expose the nakedness of the laws of
Great Britain, and the nakedness of the authority of the Court of
Directors to the country powers, he wrote a letter, which your Lordships
will find in page 795 of the printed Minutes. In this letter the secret
of his government is discovered to the country powers. They are given to
understand, that, whatever exaction, whatever oppression or ruin they
may suffer, they are to look nowhere for relief but to him: not to the
Council, not to the Court of Directors, not to the sovereign authority
of Great Britain, but to him, and him only.
Before we proceed to this letter, we will first read to you the Minute
of Council by which he dismissed Mr. Bristow upon a former occasion, (it
is in page 507 of the printed Minutes,) that your Lordships may see his
audacious defiance of the laws of the country. We wish, I say, before we
show you the horrible and fatal effects of this his defiance, to impress
continually upon your Lordships' minds that this man is to be tried by
the laws of the country, and that it is not in his power to annihilate
their authority and the authority of his masters. We insist upon it,
that every man under the authority of this country is bound to obey its
laws. This minute relates to his first removal of Mr. Bristow: I read it
in order to show that he dared to defy the Court of Directors so early
as the year 1776.
"Resolved, That Mr. John Bristow be recalled to the Presidency from the
court of the Nabob of Oude, and that Mr. Nathaniel Middleton be restored
to the appointment of Resident at that court, subject to the orders and
authority of the Governor-General and Council, conformably to the motion
of the Governor-General."
I will next read to your Lordships the orders of the Directors for his
reinstatement, on the 4th of July, 1777.
"Upon the most careful perusal of your proceedings upon the 2d of
December, 1776, relative to the recall of Mr. Bristow from the court of
the Nabob of Oude, and the appointment of Mr. Nathaniel Middleton to
that station, we must declare our strongest disapprobation of the whole
of that transaction. We observe that the Governor-General's motion for
the recall of Mr. Bristow includes that for the restoration of Mr.
Nathaniel Middleton; but as neither of those measures appear to us
necessary, or even justifiable, they cannot receive our approbation.
With respect to Mr. Bristow, we find no shadow of charge against him. It
appears that he has executed his trust to the entire satisfaction even
of those members of the Council who did not concur in his appointment.
You have unanimously recommended him to our notice; attention to your
recommendation has induced us to afford him marks of our favor, and to
reannex the emoluments affixed by you to his appointment, which had been
discontinued by our order; and as we must be of opinion that a person of
acknowledged abilities, whose conduct has thus gained him the esteem of
his superiors, ought not to be degraded without just cause, we do not
hesitate to interpose in his behalf, and therefore direct that Mr.
Bristow do forthwith return to his station of Resident at Oude, from
which he has been so improperly removed."
Upon the receipt of these orders by the Council, Mr. Francis, then a
member of the Council, moves, "That, in obedience to the Company's
orders, Mr. Bristow be forthwith appointed and directed to return to his
station of Resident at Oude, and that Mr. Purling be ordered to deliver
over charge of the office to Mr. Bristow immediately on his arrival, and
return himself forthwith to the Presidency; also that the
Governor-General be requested to furnish Mr. Bristow with the usual
letter of credence to the Nabob Vizier."
Upon this motion being made, Mr. Hastings entered the following minute.
"I will ask, who is Mr. Bristow, that a member of the administration
should at such a time hold him forth as an instrument for the
degradation of the first executive member of this government? What are
the professed objects of his appointment? What are the merits and
services, or what the qualifications, which entitle him to such an
uncommon distinction? Is it for his superior integrity, or from his
eminent abilities, that he is to be dignified, at such hazards of every
consideration that ought to influence members of this administration? Of
the former I know no proofs; I am sure that it is not an evidence of it,
that he has been enabled to make himself the principal in such a
competition; and for the test of his abilities, I appeal to the letter
which he has dared to write to this board, and which, I am ashamed to
say, we have suffered. I desire that a copy of it may be inserted in
this day's proceedings, that it may stand before the eyes of every
member of the board, when he shall give his vote upon a question for
giving their confidence to a man, their servant, who has publicly
insulted them, his masters, and the members of the government, to whom
he owes his obedience; who, assuming an association with the Court of
Directors, and erecting himself into a tribunal, has arraigned them for
disobedience of orders, passed judgment upon them, and condemned or
acquitted them as their magistrate and superior. Let the board consider
whether a man possessed of so independent a spirit, who has already
shown such a contempt of their authority, who has shown himself so
wretched an advocate for his own cause and negotiator for his own
interest, is fit to be trusted with the guardianship of their honor, the
execution of their measures, and as their confidential manager and
negotiator with the princes of India."
My Lords, you here see an instance of what I have before stated to your
Lordships, and what I shall take the liberty of recommending to your
constant consideration. You see that a tyrant and a rebel is one and the
same thing. You see this man, at the very time that he is a direct rebel
to the Company, arbitrarily and tyrannically displacing Mr. Bristow,
although he had previously joined in the approbation of his conduct, and
in voting him a pecuniary reward. He is ordered by the Court of
Directors to restore that person, who desires, in a suppliant, decent,
proper tone, that the Company's orders should produce their effect, and
that the Council would have the goodness to restore him to his
situation.
My Lords, you have seen the audacious insolence, the tyrannical pride,
with which he dares to treat this order. You have seen the recorded
minute which he has dared to send to the Court of Directors; and in
this you see, that, when he cannot directly asperse a man's conduct, and
has nothing to say against it, he maliciously, I should perhaps rather
say enviously, insinuates that he had unjustly made his fortune. "You
are," says he, "to judge from the independence of his manner and style,
whether he could or no have got that without some unjust means." God
forbid I should ever be able to invent anything that can equal the
impudence of what this man dares to write to his superiors, or the
insolent style in which he dares to treat persons who are not his
servants!
Who made the servants of the Company the master of the servants of the
Company? The Court of Directors are their fellow-servants; they are all
the servants of this kingdom. Still the claim of a fellow-servant to
hold an office which the Court of Directors had legally appointed him to
is considered by this audacious tyrant as an insult to him. By this you
may judge how he treats not only the servants of the Company, but the
natives of the country, and by what means he has brought them into that
abject state of servitude in which they are ready to do anything he
wishes and to sign anything he dictates. I must again beg your Lordships
to remark what this man has had the folly and impudence to place upon
the records of the Council of which he was President; and I will venture
to assert that so extraordinary a performance never before appeared on
the records of any court, Eastern or European. Because Mr. Bristow
claims an office which is his right and his freehold as long as the
Company chooses, Mr. Hastings accuses him of being an accomplice with
the Court of Directors in a conspiracy against him; and because, after
long delays, he had presented an humble petition to have the Court of
Directors' orders in his favor carried into execution, he says "he has
erected himself into a tribunal of justice; that he has arraigned the
Council for disobedience of orders, passed judgment upon them, and
condemned or acquitted them as their magistrate and superior."
Let us suppose his Majesty to have been pleased to appoint any one to an
office in the gift of the crown, what should we think of the person
whose business it was to execute the King's commands, if he should say
to the person appointed, when he claimed his office, "You shall not have
it, you assume to be my superior, and you disgrace and dishonor me"?
Good God! my Lords, where was this language learned? in what country,
and in what barbarous nation of Hottentots was this jargon picked up?
For there is no Eastern court that I ever heard of (and I believe I have
been as conversant with the manners and customs of the East as most
persons whose business has not directly led them into that country)
where such conduct would have been tolerated. A bashaw, if he should be
ordered by the Grand Seignior to invest another with his office, puts
the letter upon his head, and obedience immediately follows.
But the obedience of a barbarous magistrate should not be compared to
the obedience which a British subject owes to the laws of his country.
Mr. Hastings receives an order which he should have instantly obeyed. He
is reminded of this by the person who suffers from his disobedience; and
this proves that person to be possessed of too independent a spirit. Ay,
my Lords, here is the grievance;--no man can dare show in India an
independent spirit. It is this, and not his having shown such a
contempt of their authority, not his having shown himself so wretched an
advocate for his own cause and so had a negotiator for his own interest,
that makes him unfit to be trusted with the guardianship of their honor,
the execution of their measures, and to be their confidential manager
and negotiator with the princes of India.
But, my Lords, what is this want of skill which Mr. Bristow has shown in
negotiating his own affairs? Mr. Hastings will inform us. "He should
have pocketed the letter of the Court of Directors; he should never have
made the least mention of it. He should have come to my banian, Cantoo
Baboo; he should have offered him a bribe upon the occasion. That would
have been the way to succeed with me, who am a public-spirited taker of
bribes and nuzzers. But this base fool, this man, who is but a vile
negotiator for his own interest, has dared to accept the patronage of
the Court of Directors. He should have secured the protection of Cantoo
Baboo, their more efficient rival. This would have been the skilful mode
of doing the business." But this man, it seems, had not only shown
himself an unskilful negotiator, he had likewise afforded evidence of
his want of integrity. And what is this evidence? His having "enabled
himself to become the _principal_ in such a competition." That is to
say, he had, by his meritorious conduct in the service of his masters,
the Directors, obtained their approbation and favor. Mr. Hastings then
contemptuously adds, "And for the test of his abilities, I appeal to the
letter which he has dared to write to the board, and which I am ashamed
to say we have suffered." Whatever that letter may be, I will venture to
say there is not a word or syllable in it that tastes of such insolence
and arbitrariness with regard to the servants of the Company, his
fellow-servants, of such audacious rebellion with regard to the laws of
his country, as are contained in this minute of Mr. Hastings.
But, my Lords, why did he choose to have Mr. Middleton appointed
Resident? Your Lordships have not seen Mr. Bristow: you have only heard
of him as a humble suppliant to have the orders of the Company obeyed.
But you have seen Mr. Middleton. You know that Mr. Middleton is a good
man to keep a secret: I describe him no further. You know what
qualifications Mr. Hastings requires in a favorite. You also know why he
was turned out of his employment, with the approbation of the Court of
Directors: that it was principally because, when Resident in Oude, he
positively, audaciously, and rebelliously refused to lay before the
Council the correspondence with the country powers. He says he gave it
up to Mr. Hastings. Whether he has or has not destroyed it we know not;
all we know of it is, that it is not found to this hour. We cannot even
find Mr. Middleton's trunk, though Mr. Jonathan Scott did at last
produce his. The whole of the Persian correspondence, during Mr.
Middleton's Residence, was refused, as I have said, to the board at
Calcutta and to the Court of Directors,--was refused to the legal
authorities; and Mr. Middleton, for that very refusal, was again
appointed by Mr. Hastings to supersede Mr. Bristow, removed without a
pretence of offence; he received, I say, this appointment from Mr.
Hastings, as a reward for that servile compliance by which he dissolved
every tie between himself and his legal masters.
The matter being now brought to a simple issue, whether the
Governor-General is or is not bound to obey his superiors, I shall here
leave it with your Lordships; and I have only to beg your Lordships will
remark the course of events as they follow each other,--keeping in mind
that the prisoner at your bar declared Mr. Bristow to be a man of
suspected integrity, on account of his independence, and deficient in
ability, because he did not know how best to promote his own interest.
I must here state to your Lordships, that it was the duty of the
Resident to transact the money concerns of the Company, as well as its
political negotiations. You will now see how Mr. Hastings divided that
duty, after he became apprehensive that the Court of Directors might be
inclined to assert their own authority, and to assert it in a proper
manner, which they so rarely did. When, therefore, his passion had
cooled, when his resentment of those violent indignities which had been
offered to him, namely, the indignity of being put in mind that he had
any superior under heaven, (for I know of no other,) he adopts the
expedient of dividing the Residency into two offices; he makes a fair
compromise between himself and the Directors; he appoints Mr. Middleton
to the management of the money concerns, and Mr. Bristow to that of the
political affairs. Your Lordships see that Mr. Bristow, upon whom he had
fixed the disqualification for political affairs, was the very person
appointed to that department; and to Mr. Middleton, the man of his
confidence, he gives the management of the money transactions. He
discovers plainly where his heart was: for where your treasure is, there
will your heart be also. This private agent, this stifler of
correspondence, a man whose costive retention discovers no secret
committed to him, and whose slippery memory is subject to a diarrhoea
which permits everything he did know to escape,--this very man he places
in a situation where his talents could only be useful for concealment,
and where concealment could only be used to cover fraud; while Mr.
Bristow, who was by his official engagement responsible to the Company
for fair and clear accounts, was appointed superintendent of political
affairs, an office for which Mr. Hastings declared he was totally unfit.
My Lords, you will judge of the designs which the prisoner had in
contemplation, when he dared to commit this act of rebellion against the
Company; you will see that it could not have been any other than getting
the money transactions of Oude into his own hands. The presumption of a
corrupt motive is here as strong as, I believe, it possibly can be.
The next point to which I have to direct your Lordships' attention is
that part of the prisoner's conduct, in this matter, by which he exposed
the nakedness of the Company's authority to the native powers. You would
imagine, that, after the first dismissal of Mr. Bristow, Mr. Hastings
would have done with him forever; that nothing could have induced him
again to bring forward a man who had dared to insult him, a man who had
shown an independent spirit, a man who had dishonored the Council and
insulted his masters, a man of doubtful integrity and convicted
unfitness for office. But, my Lords, in the face of all this, he
afterwards sends this very man, with undivided authority, into the
country as sole Resident. And now your Lordships shall hear in what
manner he accounts for this appointment to Gobind Ram, the _vakeel_, or
ambassador, of the Nabob Asoph ul Dowlah at Calcutta. It is in page 795
of the printed Minutes.
_Extract of an Arzee sent by Rajah Gobind Ram to the Vizier, by the
Governor-General's directions, and written the 27th of August,
1782._
"This day the Governor-General sent for me in private. After
recapitulating the various informations he had received respecting
the anarchy and confusion said to reign throughout your Highness's
country, and complains that neither your Highness, or Hyder Beg
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, and
worthy of being taken out of that abyss of secrets, Mr. Scott's trunk,
in which this arzee was found. It contains, as far as the prisoner
thinks proper to reveal it, the true secret of the transaction.
He confesses, first, the state of the Vizier's country, as communicated
to him in various accounts of the anarchy and confusion said to reign
throughout his territories. This was in the year 1782, during the time
that the Oude correspondence was not communicated to the Council.
He next stated, that neither the Vizier, nor his minister, nor Mr.
Middleton, nor Mr. Johnson, ever wrote to him on the state of affairs.
Here, then, are three or four persons, all nominated by himself, every
one of them supposed to be in his strictest confidence,--the Nabob and
his vassal, Hyder Beg Khân, being, as we shall show afterwards, entirely
his dependants,--and yet Mr. Hastings declares, that not one of them had
done their duty, or had written him one word concerning the state of the
country, and the anarchy and confusion that prevailed in it, and that,
when the Nabob did write, his assertions were contrary to the real state
of things. Now this irregular correspondence, which he carried on at
Lucknow, and which gave him, as he pretends, this contradictory
information, was, as your Lordships will see, nothing more or less than
a complete fraud.
Your Lordships will next observe, that he tells the vakeel his reason
for turning him out was, that he had been patronized by other gentlemen.
This was true: but they had a right to patronize him; and they did not
patronize him from private motives, but in direct obedience to the order
of the Court of Directors. He then adds the assurance which he had
received from Mr. Bristow, that he would be perfectly obedient to him,
Mr. Hastings, in future; and he goes on to tell the vakeel that he knew
the Vizier was once well pleased with him, (Mr. Bristow,) and that his
formal complaints against him were written at the instigation of Mr.
Middleton.
Here is another discovery, my Lords. When he recalled Mr. Bristow, he
did it under the pretence of its being desired by the Nabob of Oude; and
that, consequently, he would not keep at the Nabob's court a man that
was disagreeable to him. Yet, when the thing comes to be opened, it
appears that Mr. Middleton had made the Nabob, unwillingly, write a
false letter. This subornation of falsehood appears also to have been
known to Mr. Hastings. Did he, either as the natural guardian and
protector of the reputation of his fellow-servants, or as the official
administrator of the laws of his country, or as a faithful servant of
the Company, ever call Mr. Middleton to an account for it? No, never. To
everybody, therefore, acquainted with the characters and circumstances
of the parties concerned, the conclusion will appear evident that he was
himself the author of it. But your Lordships will find there is no end
of his insolence and duplicity.
He next tells the vakeel, that the reason why he postponed the mission
of Mr. Bristow to Lucknow was lest the people of Lucknow should think he
had obtained his appointment in consequence of orders from Europe, and
contrary to the Governor's inclination. You see, my Lords, he would have
the people of the country believe that they are to receive the person
appointed Resident not as appointed by the Company, but in consequence
of his being under Mr. Hastings's particular patronage; and to remove
from them any suspicion that the Resident would obey the orders of the
Court of Directors, or any orders but his own, he proceeds in the manner
I have read to your Lordships.
You here see the whole machinery of the business. He removes Mr.
Bristow, contrary to the orders of the Court of Directors. Why? Because,
says he to the Court of Directors, the Nabob complained of him, and
desired it. He here says, that he knew the Nabob did not desire it, but
that the letter of complaint really and substantially was Mr.
Middleton's. Lastly, as he recalls Mr. Bristow, so he wishes him to be
called back in the same fictitious and fraudulent manner. This system of
fraud proves that there is not one letter from that country, not one act
of this Vizier, not one act of his ministers, not one act of his
ambassadors, but what is false and fraudulent. And now think, my Lords,
first, of the slavery of the Company's servants, subjected in this
manner to the arbitrary will and corrupt frauds of Mr. Hastings! Next
think of the situation of the princes of the country, obliged to
complain without matter of complaint, to approve without [ground?] of
satisfaction, and to have all their correspondence fabricated by Mr.
Hastings at Calcutta!
But, my Lords, it was not indignities of this kind alone that the native
princes suffered from this system of fraud and duplicity. Their more
essential interests, and those of the people, were involved in it; it
pervaded and poisoned the whole mass of their internal government.
Who was the instrument employed in all this double-dealing? Gobind Ram,
the Vizier's diplomatic minister at Calcutta. Suspicions perpetually
arise in his mind whether he is not cheated and imposed upon. He could
never tell when he had Mr. Hastings fixed upon any point. He now finds
him recommending Mr. Middleton, and then declaring that Mr. Middleton
neglects the duty of his office, and gives him, Gobind Ram, information
that is fraudulent and directly contrary to the truth. He is let into
various contradictory secrets, and becomes acquainted with innumerable
frauds, falsehoods, and prevarications. He knew that the whole pretended
government of Oude was from beginning to end a deception; that it was an
imposture for the purpose of corruption and peculation. Such was the
situation of the Nabob's vakeel. The Nabob himself was really at a loss
to know who had and who had not the Governor's confidence; whether he
was acting in obedience to the orders of the Court of Directors, or
whether their orders were not always to be disobeyed. He thus writes to
Gobind Ram, who was exactly in the same uncertainty.
"As to the commands of Mr. Hastings which you write on the subject of
the distraction of the country and the want of information from me, and
his wishes, that, as Mr. John Bristow has shown sincere wishes and
attachment to Mr. Hastings, I should write for him to send Mr. John
Bristow, it would have been proper and necessary for you privately to
have understood what were Mr. Hastings's real intentions, whether the
choice of sending Mr. John Bristow was his own desire, or whether it was
in compliance with Mr. Macpherson's, that I might then have written
conformably thereto. Writings are now sent to you for both cases; having
privately understood the wishes of Mr. Hastings, deliver whichever of
the writings he should order you; for I study Mr. Hastings's
satisfaction; whoever is his friend is mine, and whoever is his enemy is
mine. But in both these cases, my wishes are the same; that having
consented to the paper of questions which Major Davy carried with him,
and having given me the authority of the country, whomever he may
afterwards appoint, I am satisfied. I am now brought to great distress
by these gentlemen, who ruin me; in case of consent, I am contented with
Majors Davy and Palmer. Hereafter, whatever may be Mr. Hastings's
desire, it is best."
Here is a poor, miserable instrument, confessing himself to be such,
ruined by Mr. Hastings's public agents, Mr. Middleton and Mr. Johnson;
ruined by his private agents, Major Davy and Major Palmer; ruined
equally by them all; and at last declaring in a tone of despair, "If you
have a mind really to keep Major Davy and Major Palmer here, why, I must
consent to it. Do what you please with me, I am your creature; for God's
sake, let me have a little rest."
Your Lordships shall next hear what account Hyder Beg Khân, the Vizier's
prime-minister, gives of the situation in which he and his master were
placed.
_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 any
public theatre? You see here, behind the ostensible scenery, all the
crooked working of the machinery developed and laid open to the world.
You now see by what secret movement the master of the mechanism has
conducted the great Indian opera,--an opera of fraud, deceptions, and
harlequin tricks. You have it all laid open before you. The ostensible
scene is drawn aside; it has vanished from your sight. All the strutting
signors, and all the soft signoras are gone; and instead of a brilliant
spectacle of descending chariots, gods, goddesses, sun, moon, and stars,
you have nothing to gaze on but sticks, wire, ropes, and machinery. You
find the appearance all false and fraudulent; and you see the whole
trick at once. All this, my Lords, we owe to Major Scott's trunk, which,
by admitting us behind the scene, has enabled us to discover the real
state of Mr. Hastings's government in India. And can your Lordships
believe that all this mechanism of fraud, prevarication, and falsehood
could have been intended for any purpose but to forward that robbery,
corruption, and peculation by which Mr. Hastings has destroyed one of
the finest countries upon earth? Is it necessary, after this, for me to
tell you that you are not to believe one word of the correspondence
stated by him to have been received from India? This discovery goes to
the whole matter of the whole government of the country. You have seen
what that government was, and by-and-by you shall see the effects of it.
Your Lordships have now seen this trunk of Mr. Scott's producing the
effects of Aladdin's lamp,--of which your Lordships may read in books
much more worthy of credit than Mr. Hastings's correspondence. I have
given all the credit of this precious discovery to Mr. Scott's trunk;
but, my Lords, I find that I have to ask pardon for a mistake in
supposing the letter of Hyder Beg Khân to be a part of Mr. Hastings's
correspondence. It comes from another quarter, not much less singular,
and equally authentic and unimpeachable. But though it is not from the
trunk, it smells of the trunk, it smells of the leather. I was as proud
of my imaginary discovery as Sancho Panza was that one of his ancestors
had discovered a taste of iron in some wine, and another a taste of
leather in the same wine, and that afterwards there was found in the
cask a little key tied to a thong of leather, which had given to the
wine a taste of both. Now, whether this letter tasted of the leather of
the trunk or of the iron of Mr. Macpherson, I confess I was a little
out in my suggestion and my taste. The letter in question was written by
Hyder Beg Khân, after Mr. Hastings's departure, to Mr. Macpherson, when
he succeeded to the government. That gentleman thus got possession of a
key to the trunk; and it appears to have been his intentions to follow
the steps of his predecessor, to act exactly in the same manner, and in
the same manner to make the Nabob the instrument of his own ruin. This
letter was written by the Nabob's minister to Sir John Macpherson, newly
inaugurated into his government, and who might be supposed not to be
acquainted with all the best of Mr. Hastings's secrets, nor to have had
all the trunk correspondence put into his hands. However, here is a
trunk extraordinary, and its contents are much in the manner of the
other. The Nabob's minister acquaints him with the whole secret of the
system. It is plain that the Nabob considered it as a system not to be
altered: that there was to be nothing true, nothing aboveboard, nothing
open in the government of his affairs. When you thus see that there can
be little doubt of the true nature of the government, I am sure that
hereafter, when we come to consider the effects of that government, it
will clear up and bring home to the prisoner at your bar all we shall
have to say upon this subject.
Mr. Hastings, having thrown off completely the authority of the Company,
as you have seen,--having trampled upon those of their servants who had
manifested any symptom of independence, or who considered the orders of
the Directors as a rule of their conduct,--having brought every
Englishman under his yoke, and made them supple and fit instruments for
all his designs,--then gave it to be understood that such alone were
fit persons to be employed in important affairs of state. Consider, my
Lords, the effect of this upon the whole service. Not one man that
appears to pay any regard to the authority of the Directors is to expect
that any regard will be paid to himself. So that this man not only
rebels himself, in his own person, against the authority of the Company,
but he makes all their servants join him in this very rebellion. Think,
my Lords, of this state of things,--and I wish it never to pass from
your minds that I have called him the captain-general of the whole host
of actors in Indian iniquity, under whom that host was arrayed,
disciplined, and paid. This language which I used was not, as fools have
thought proper to call it, offensive and abusive; it is in a proper
criminatory tone, justified by the facts that I have stated to you, and
in every step we take it is justified more and more. I take it as a text
upon which I mean to preach; I take it as a text which I wish to have in
your Lordships' memory from the beginning to the end of this proceeding.
He is not only guilty of iniquity himself, but is at the head of a
system of iniquity and rebellion, and will not suffer with impunity any
one honest man to exist in India, if he can help it. Every mark of
obedience to the legal authority of the Company is by him condemned; and
if there is any virtue remaining in India, as I think there is, it is
not his fault that it still exists there.
We have shown you the servile obedience of the natives of the country;
we have shown you the miserable situation to which a great prince, at
least a person who was the other day a great prince, was reduced by Mr.
Hastings's system. We shall next show you that this prince, who,
unfortunately for himself, became a dependant on the Company, and
thereby subjected to the will of an arbitrary government, is made by him
the instrument of his own degradation, the instrument of his (the
Governor's) falsehoods, the instrument of his peculations; and that he
had been subjected to all this degradation for the purposes of the most
odious tyranny, violence, and corruption.
Mr. Hastings, having assumed the government to himself, soon made Oude a
private domain. It had, to be sure, a public name, but it was to all
practical intents and purposes his park, or his warren,--a place, as it
were, for game, whence he drew out or killed, at an earlier or later
season, as he thought fit, anything he liked, and brought it to his
table according as it served his purpose. Before I proceed, it will not
be improper for me to remind your Lordships of the legitimate ends to
which all controlling and superintending power ought to be directed.
Whether a man acquires this power by law or by usurpation, there are
certain duties attached to his station. Let us now see what these duties
are.
The first is, to take care of that vital principle of every state, its
revenue. The next is, to preserve the magistracy and legal authorities
in honor, respect, and force. And the third, to preserve the property,
movable and immovable, of all the people committed to his charge.
In regard to his first duty, the protection of the revenue, your
Lordships will find, that, from three millions and upwards which I
stated to be the revenue of Oude, and which Mr. Hastings, I believe, or
anybody for him, has never thought proper to deny, it sunk under his
management to about one million four hundred and forty thousand pounds:
and even this, Mr. Middleton says, (as you may see in your minutes,) was
not completely realized. Thus, my Lords, you see that one half of the
whole revenue of the country was lost after it came into Mr. Hastings's
management. Well, but it may perhaps be said this was owing to the
Nabob's own imprudence. No such thing, my Lords; it could not be so; for
the whole _real_ administration and government of the country was in the
hands of Mr. Hastings's agents, public or private.
To let you see how provident Mr. Hastings's management of it was, I
shall produce to your Lordships one of the principal manoeuvres that he
adopted for the improvement of the revenue, and for the happiness and
prosperity of the country, the latter of which will always go along,
more or less, with the first.
The Nabob, whose acts your Lordships have now learned to appreciate as
no other than the acts of Mr. Hastings, writes to the Council to have a
body of British officers, for the purposes of improving the discipline
of his troops, collecting his revenues, and repressing disorder and
outrage among his subjects. This proposal was ostensibly fair and
proper; and if I had been in the Council at that time, and the Nabob had
really and _bonâ fide_ made such a request, I should have said he had
taken a very reasonable and judicious step, and that the Company ought
to aid him in his design.
Among the officers sent to Oude, in consequence of this requisition, was
the well-known Colonel Hannay: a man whose name will be bitterly and
long remembered in India. This person, we understand, had been
recommended to Mr. Hastings by Sir Elijah Impey: and his appointment was
the natural consequence of such patronage. I say the natural
consequence, because Sir Elijah Impey appears on your minutes to have
been Mr. Hastings's private agent and negotiator in Oude. In that light,
and in that light only, I consider Colonel Hannay in this business. We
cannot prove that he was not of Mr. Hastings's own nomination originally
and primarily; but whether we take him in this way, or as recommended by
Sir Elijah Impey, or anybody else, Mr. Hastings is equally responsible.
Colonel Hannay is sent up by Mr. Hastings, and has the command of a
brigade, of two regiments I think, given to him. Thus far all is
apparently fair and easily understood. But in this country we find
everything in masquerade and disguise. We find this man, instead of
being an officer, farmed the revenue of the country, as is proved by
Colonel Lumsden and other gentlemen, who were his sub-farmers and his
assistants. Here, my Lords, we have a man who appeared to have been sent
up the country as a commander of troops, agreeably to the Nabob's
request, and who, upon our inquiry, we discover to have been
farmer-general of the country! We discover this with surprise; and I
believe, till our inquiries began, it was unknown in Europe. We have,
however, proved upon your Lordships' minutes, by an evidence produced by
Mr. Hastings himself, that Colonel Hannay was actually farmer-general of
the countries of Baraitch and Goruckpore. We have proved upon your
minutes that Colonel Hannay was the only person possessed of power in
the country; that there was no magistrate in it, nor any administration
of the law whatever. We have proved to your Lordships that in his
character of farmer-general he availed himself of the influence derived
from commanding a battalion of soldiers. In short, we have proved that
the whole power, civil, military, municipal, and financial, resided in
him; and we further refer your Lordships to Mr. Lumsden and Mr. Halhed
for the authority which he possessed in that country. Your Lordships, I
am sure, will supply with your diligence what is defective in my
statement; I have therefore taken the liberty of indicating to you where
you are to find the evidence to which I refer. You will there, my Lords,
find this Colonel Hannay in a false character: he is ostensibly given to
the Nabob as a commander of his troops, while in reality he is forced
upon that prince as his farmer-general. He is invested with the whole
command of the country, while the sovereign is unable to control him, or
to prevent his extorting from the people whatever he pleases.
If we are asked what the terms of his farm were, we cannot discover that
he farmed the country at any certain sum. We cannot discover that he was
subjected to any terms, or confined by any limitations. Armed with
arbitrary power, and exercising that power under a false title, his
exactions from the poor natives were only limited by his own pleasure.
Under these circumstances, we are now to ask what there was to prevent
him from robbing and ruining the people, and what security against his
robbing the exchequer of the person whose revenue he farmed.
You are told by the witnesses in the clearest manner, (and, after what
you have heard of the state of Oude, you cannot doubt the fact,) that
nobody, not even the Nabob, dared to complain against him,--that he was
considered as a man authorized and supported by the power of the British
government; and it is proved in the evidence before you that he vexed
and harassed the country to the utmost extent which we have stated in
our article of charge, and which you would naturally expect from a man
acting under such false names with such real powers. We have proved that
from some of the principal zemindars in that country, who held farms let
to them for twenty-seven thousand rupees a year, a rent of sixty
thousand was demanded, and in some cases enforced,--and that upon the
refusal of one of them to comply with this demand, he was driven out of
the country.
Your Lordships will find in the evidence before you that the inhabitants
of the country were not only harassed in their fortunes, but cruelly
treated in their persons. You have it upon Mr. Halhed's evidence, and it
is not attempted, that I know of, to be contradicted, that the people
were confined in open cages, exposed to the scorching heat of the sun,
for pretended or real arrears of rent: it is indifferent which, because
I consider all confinement of the person to support an arbitrary
exaction to be an abomination not to be tolerated. They have endeavored,
indeed, to weaken this evidence by an attempt to prove that a man day
and night in confinement in an open cage suffers no inconvenience. And
here I must beg your Lordships to observe the extreme unwillingness that
appears in these witnesses. Their testimony is drawn from them drop by
drop, their answers to our questions are never more than yes or no; but
when they are examined by the counsel on the other side, it flows as
freely as if drawn from a perennial spring: and such a spring we have in
Indian corruption. We have, however, proved that in these cages the
renters were confined till they could be lodged in the dungeons or mud
forts. We have proved that some of them were obliged to sell their
children, that others fled the country, and that these practices were
carried to such an awful extent that Colonel Hannay was under the
necessity of issuing orders against the unnatural sale and flight which
his rapacity had occasioned.
The prisoner's counsel have attempted to prove that this had been a
common practice in that country. And though possibly some person as
wicked as Colonel Hannay might have been there before at some time or
other, no man ever sold his children but under the pressure of some
cruel exaction. Nature calls out against it. The love that God has
implanted in the heart of parents towards their children is the first
germ of that second conjunction which He has ordered to subsist between
them and the rest of mankind. It is the first formation and first bond
of society. It is stronger than all laws; for it is the law of Nature,
which is the law of God. Never did a man sell his children who was able
to maintain them. It is, therefore, not only a proof of his exactions,
but a decisive proof that these exactions were intolerable.
Next to the love of parents for their children, the strongest instinct,
both natural and moral, that exists in man, is the love of his country:
an instinct, indeed, which extends even to the brute creation. All
creatures love their offspring; next to that they love their homes: they
have a fondness for the place where they have been bred, for the
habitations they have dwelt in, for the stalls in which they have been
fed, the pastures they have browsed in, and the wilds in which they have
roamed. We all know that the natal soil has a sweetness in it beyond the
harmony of verse. This instinct, I say, that binds all creatures to
their country, never becomes inert in us, nor ever suffers us to want a
memory of it. Those, therefore, who seek to fly their country can only
wish to fly from oppression: and what other proof can you want of this
oppression, when, as a witness has told you, Colonel Hannay was obliged
to put bars and guards to confine the inhabitants within the country?
We have seen, therefore, Nature violated in its strongest principles. We
have seen unlimited and arbitrary exaction avowed, on no pretence of any
law, rule, or any fixed mode by which these people were to be dealt
with. All these facts have been proved before your Lordships by costive
and unwilling witnesses. In consequence of these violent and cruel
oppressions, a general rebellion breaks out in the country, as was
naturally to be expected. The inhabitants rise as if by common consent;
every farmer, every proprietor of land, every man who loved his family
and his country, and had not fled for refuge, rose in rebellion, as they
call it. My Lords, they did rebel; it was a just rebellion. Insurrection
was there just and legal, inasmuch as Colonel Hannay, in defiance of the
laws and rights of the people, exercised a clandestine, illegal
authority, against which there can be no rebellion in its proper sense.
As a rebellion, however, and as a rebellion of the most unprovoked
kind, it was treated by Colonel Hannay; and to one instance of the means
taken for suppressing it, as proved by evidence before your Lordships, I
will just beg leave to call your attention. One hundred and fifty of the
inhabitants had been shut up in one of the mud forts I have mentioned.
The people of the country, in their rage, attacked the fort, and
demanded the prisoners; they called for their brothers, their fathers,
their husbands, who were confined there. It was attacked by the joint
assault of men and women. The man who commanded in the fort immediately
cut off the heads of eighteen of the principal prisoners, and tossed
them over the battlements to the assailants. There happened to be a
prisoner in the fort, a man loved and respected in his country, and who,
whether justly or unjustly, was honored and much esteemed by all the
people. "Give us our Rajah, Mustapha Khân!" (that was the name of the
man confined,) cried out the assailants. We asked the witness at your
bar what he was confined for. He did not know; but he said that Colonel
Hannay had confined him, and added, that he was sentenced to death. We
desired to see the _fetwah_, or decree, of the judge who sentenced him.
No,--no such thing, nor any evidence of its having ever existed, could
be produced. We desired to know whether he could give any account of the
process, any account of the magistrate, any account of the accuser, any
account of the defence,--in short, whether he could give any account
whatever of this man's being condemned to death. He could give no
account of it, but the orders of Colonel Hannay, who seems to have
imprisoned and condemned him by his own arbitrary will. Upon the demand
of Rajah Mustapha by the insurgents being made known to Colonel Hannay,
he sends an order to the commander of the fort, a man already stained
with the blood of all the people who were murdered there, that, if he
had not executed Mustapha Khân, he should execute him immediately. The
man is staggered at the order, and refuses to execute it, as not being
directly addressed to him. Colonel Hannay then sends a Captain Williams,
who has appeared here as an evidence at your bar, and who, together with
Captain Gordon and Major Macdonald, both witnesses also here, were all
sub-farmers and actors under Colonel Hannay. This Captain Williams, I
say, goes there, and, without asking one of those questions which I put
to the witness at your bar, and desiring nothing but Colonel Hannay's
word, orders the man to be beheaded; and accordingly he was beheaded,
agreeably to the orders of Colonel Hannay. Upon this, the rebellion
blazed out with tenfold fury, and the people declared they would be
revenged for the destruction of their zemindar.
Your Lordships have now seen this Mustapha Khân imprisoned and sentenced
to death by Colonel Hannay, without judge and without accuser, without
any evidence, without the _fetwah_, or any sentence of the law. This man
is thus put to death by an arbitrary villain, by a more than cruel
tyrant, Colonel Hannay, the substitute of a ten thousand times more
cruel tyrant, Mr. Hastings.
In this situation was the country of Oude, under Colonel Hannay, when he
was removed from it. The knowledge of his misconduct had before induced
the miserable Nabob to make an effort to get rid of him; but Mr.
Hastings had repressed that effort by a civil reprimand,--telling him,
indeed, at the same time, "I do not force you to receive him." (Indeed,
the Nabob's situation had in it force enough.) The Nabob, I say, was
forced to receive him; and again he ravages and destroys that devoted
country, till the time of which I have been just speaking, when he was
driven out of it finally by the rebellion, and, as you may imagine,
departed like a leech full of blood.
It is stated in evidence upon your minutes that this bloated leech went
back to Calcutta; that he was supposed, from a state of debt, (in which
he was known to have been when he left that city,) to have returned from
Oude with the handsome sum of 300,000_l._, of which 80,000_l._ was in
gold mohurs. This is declared to be the universal opinion in India, and
no man has ever contradicted it. Ten persons have given evidence to that
effect; not one has contradicted it, from that hour to this, that I ever
heard of. The man is now no more. Whether his family have the whole of
the plunder or not,--what partnership there was in this business,--what
shares, what dividends were made, and who got them,--about all this
public opinion varied, and we can with certainty affirm nothing; but
there ended the life and exploits of Colonel Hannay, farmer-general,
civil officer, and military commander of Baraitch and Goruckpore. But
not so ended Mr. Hastings's proceedings.
Soon after the return of Colonel Hannay to Calcutta, this miserable
Nabob received intelligence, which concurrent public fame supported,
that Mr. Hastings meant to send him up into the country again, on a
second expedition, probably with some such order as this:--"You have
sucked blood enough for yourself, now try what you can do for your
neighbors." The Nabob was not likely to be misinformed. His friend and
agent, Gobind Ram, was at Calcutta, and had constant access to all Mr.
Hastings's people. Mr. Hastings himself tells you what instructions
these vakeels always have to search into and discover all his
transactions. This Gobind Ram, alarmed with strong apprehensions, and
struck with horror at the very idea of such an event, apprised his
master of his belief that Mr. Hastings meant to send Colonel Hannay
again into the country. Judge now, my lords, what Colonel Hannay must
have been, from the declaration which I will now read to you, extorted
from that miserable slave, the Nabob, who thus addresses Mr. Hastings.
"My country and house belong to you; there is no difference. I hope that
you desire in your heart the good of my concerns. Colonel Hannay is
inclined to request your permission to be employed in the affairs of
this quarter. If by any means any matter of this country dependent on me
should be intrusted to the Colonel, I swear by the Holy Prophet, that I
will not remain here, but will go from hence to you. From your kindness
let no concern dependent on me be intrusted to the Colonel, and oblige
me by a speedy answer which may set my mind at ease."
We know very well that the prisoner at your bar denied his having any
intention to send him up. We cannot prove them, but we maintain that
there were grounds for the strongest suspicions that he entertained such
intentions. He cannot deny the reality of this terror which existed in
the minds of the Nabob and his people, under the apprehension that he
was to be sent up, which plainly showed that they at least considered
there was ground enough for charging him with that intention. What
reason was there to think that he should not be sent a third time, who
had been sent twice before? Certainly, none; because every circumstance
of Mr. Hastings's proceedings was systematical, and perfectly well known
at Oude.
But suppose it to have been a false report; it shows all that the
Managers wish to show, the extreme terror which these creatures and
tools of Mr. Hastings struck into the people of that country. His denial
of any intention of again sending Colonel Hannay does not disprove
either the justness of their suspicions or the existence of the terror
which his very name excited.
My Lords, I shall now call your attention to a part of the evidence
which we have produced to prove the terrible effects of Colonel Hannay's
operations. Captain Edwards, an untainted man, who tells you that he had
passed through that country again and again, describes it as bearing all
the marks of savage desolation. Mr. Holt says it has fallen from its
former state,--that whole towns and villages were no longer peopled, and
that the country carried evident marks of famine. One would have thought
that Colonel Hannay's cruelty and depredations would have satiated Mr.
Hastings. No: he finds another military collector, a Major Osborne, who,
having suffered in his preferment by the sentence of a court-martial,
whether justly or unjustly I neither know nor care, was appointed to the
command of a thousand men in the provinces of Oude, but really to the
administration of the revenues of the country. He administered them much
in the same manner as Colonel Hannay had done. He, however, transmitted
to the government at Calcutta a partial representation of the state of
the provinces, the substance of which was, that the natives were exposed
to every kind of peculation, and that the country was in a horrible
state of confusion and disorder. This is upon the Company's records; and
although not produced in evidence, your Lordships may find it, for it
has been printed over and over again. This man went up to the Vizier; in
consequence of whose complaint, and the renewed cries of the people, Mr.
Hastings was soon obliged to recall him.
But, my Lords, let us go from Major Osborne to the rest of these
military purveyors of revenue. Your Lordships shall hear the Vizier's
own account of what he suffered from British officers, and into what a
state Mr. Hastings brought that country by the agency of officers who,
under the pretence of defending it, were invested with powers which
enabled them to commit most horrible abuses in the administration of the
revenue, the collection of customs, and the monopoly of the markets.
_Copy of a Letter from the Nabob Vizier to the Governor-General._
"All the officers stationed with the brigade at Cawnpore, Futtyghur,
Darunghur, and Furruckabad, and other places, write purwannahs, and
give positive orders to the aumils of these places, respecting the
grain, &c.; from which conduct the country will become depopulate. I
am hopeful from your friendship that you will write to all these
gentlemen not to issue orders, &c., to the aumils, and not to send
troops into the mahals of the sircar; and for whatever quantity of
grain, &c., they may want, they will inform me and the Resident, and
we will write it to the aumils, who shall cause it to be sent them
every month, and I will deduct the price of them from the tuncaws:
this will be agreeable both to me and to the ryots."
_A Copy of a subsequent Letter from the Vizier to Rajah Gobind Ram_.
"I some time ago wrote you the particulars of the conduct of the
officers, and now write them again. The officers and gentlemen who
are at Cawnpore, and Futtyghur, and Darunghur, and other places, by
different means act very tyrannically and oppressively towards the
aumils and ryots and inhabitants; and to whomsoever that requires a
dustuck they give it, with their own seal affixed, and send for the
aumils and punish them. If they say anything, the gentlemen make use
of but two words: one,--_That is for the brigade;_ and the
second,--_That is to administer justice_. The particulars of it is
this,--that the byparees will bring their grain from all quarters,
and sell for their livelihood. There is at present no war to
occasion a necessity for sending for it. If none comes, whatever
quantity will be necessary every month I will mention to the aumils,
that they may bring it for sale: but there is no deficiency of
grain. The gentlemen have established gunges for their own
advantage, called Colonel Gunge, at Darunghur, Futtyghur, &c. The
collection of the customs from all quarters they have stopped, and
collected them at their own gunges. Each gunge is rented out at
30,000-40,000 rupees, and their collections paid to the gentlemen.
They have established gunges where there never were any, and where
they were, those they have abolished; 30,000 or 40,000 rupees is the
sum they are rented at; the collections, to the amount of a lac of
rupees, are stopped. Major Briscoe, who is at Darunghur, has
established a gunge which rented out for 45,000 rupees, and has
stopped the ghauts round about the byparees; and merchants coming
from Cashmere, from Shahjehanabad, and bringing shawls and other
goods and spices, &c., from all quarters, he orders to his gunge,
and collects the duty from the aumils, gives them a chit, and a
guard, who conducts them about five hundred coss: the former duties
are not collected. From the conduct at Cawnpore, Futtyghur,
Furruckabad, &c., the duties from the lilla of Gora and Thlawa are
destroyed, and occasion a loss of three lacs of rupees to the
duties; and the losses that are sustained in Furruckabad may be
ascertained by the Nabob Muzuffer Jung, to whom every day complaints
are made: exclusive of the aumils and collectors, others lodge
complaints. Whatever I do, I desire no benefit from it; I am
remediless and silent; from what happens to me, I know that worse
will happen in other places; the second word, I know, is from their
mouths only. This is the case. In this country formerly, and even
now, whatever is to be received or paid among the zemindars, ryots,
and inhabitants of the cities, and poor people, neither those who
can pay or those who cannot pay ever make any excuse to the shroffs;
but when they could pay, they did. In old debts of fifty years,
whoever complain to the gentlemen, they agree that they shall pay
one fourth, and send dustucks and sepoys to all the aumils, the
chowdries, and canongoes, and inhabitants of all the towns; they
send for everybody, to do them justice, confine them, and say they
will settle the business. So many and numerous are these calamities,
that I know not how much room it will take up to mention them. Mr.
Briscoe is at Darunghur; and the complaints of the aumils arrive
daily. I am silent. Now Mr. Middleton is coming here, let the Nabob
appoint him for settling all these affairs, that whatever he shall
order those gentlemen they will do. From this everything will be
settled, and the particulars of this quarter will be made known to
the Nabob. I have written this, which you will deliver to the
Governor, that everything may be settled; and when he has understood
it, whatever is his inclination, he will favor me with it. The Nabob
is master in this country, and is my friend; there is no
distinction."
_Copy of another Letter, entered upon the Consultation of the 4th of
June, 1781._
"I have received your letter, requesting leave for a battalion to be
raised by Captain Clark on the same footing as Major Osborne's was,
agreeable to the requests and complaints of Ishmael Beg, the aumil
of Allahabad, &c., and in compliance with the directions of the
Council. You are well acquainted with the particulars and
negotiation of Ishmael Beg, and the nature of Mr. Osborne's
battalion. At the beginning of the year 1186 (1779) the affairs of
Allahabad were given on a lease of three years to Ishmael Beg,
together with the purgunnahs Arreel and Parra; and I gave orders for
troops to be stationed and raised, conformable to his request.
Ishmael Beg accordingly collected twelve hundred peons, which were
not allowed to the aumil of that place in the year 1185. The reason
why I gave permission for the additional expense of twelve hundred
peons was, that he might be enabled to manage the country with ease,
and pay the money to government regularly. I besides sent Mr.
Osborne there to command in the mahals belonging to Allahabad, which
were in the possession of Rajah Ajeet Sing; and he accordingly took
charge. Afterwards, in obedience to the orders of the
Governor-General, Mr. Hastings, Jelladut Jung, he was recalled, and
the mahals placed, as before, under Rajah Ajeet Sing. I never sent
Mr. Osborne to settle the concerns of Allahabad, for there was no
occasion for him; but Mr. Osborne, of himself, committed
depredations and rapines within Ishmael Beg's jurisdiction. Last
year, the battalion, which, by permission of General Sir Eyre Coote,
was sent, received orders to secure and defend Ishmael Beg against
the encroachments of Mr. Osborne; for the complaints of Ishmael Beg
against the violences of Mr. Osborne had reached the General and Mr.
Purling; and the Governor and gentlemen of Council, at my request,
recalled Mr. Osborne. This year, as before, the collections of
Arreel and Parra remain under Ishmael Beg. In those places, some of
the talookdars and zemindars, who had been oppressed and ill-treated
by Mr. Osborne, had conceived ideas of rebellion."
Here, my Lords, you have an account of the condition of Darunghur,
Futtyghur, Furruckabad, and of the whole line of our military stations
in the Nabob's dominions. You see the whole was one universal scene of
plunder and rapine. You see all this was known to Mr. Hastings, who
never inflicted any punishments for all this horrible outrage. You see
the utmost he has done is merely to recall one man, Major Osborne, who
was by no means the only person deeply involved in these charges. He
nominated all these people; he has never called any of them to an
account. Shall I not, then, call him their captain-general? Shall not
your Lordships call him so? And shall any man in the kingdom call him by
any other name? We see all the executive, all the civil and criminal
justice of the country seized on by him. We see the trade and all the
duties seized upon by his creatures. We see them destroying established
markets, and creating others at their pleasure. We see them, in the
country of an ally and in a time of peace, producing all the
consequences of rapine and of war. We see the country ruined and
depopulated by men who attempt to exculpate themselves by charging their
unhappy victims with rebellion.
And now, my Lords, who is it that has brought to light all these
outrages and complaints, the existence of which has never been denied,
and for which no redress was ever obtained, and no punishment ever
inflicted? Why, Mr. Hastings himself has brought them before you; they
are found in papers which he has transmitted. God, who inflicts
blindness upon great criminals, in order that they should meet with the
punishment they deserve, has made him the means of bringing forward this
scene, which we are maliciously said to have falsely and maliciously
devised. If any one of the ravages [charges?] contained in that long
catalogue of grievances is false, Warren Hastings is the person who must
answer for that individual falsehood. If they are generally false, he
is to answer for the false and calumniating accusation; and if they are
true, my Lords, he only is answerable, for he appointed those ministers
of outrage, and never called them to account for their misconduct.
Let me now show your Lordships the character that Mr. Hastings gives of
all the British officers. It is to be found in an extract from the
Appendix to that part of his Benares Narrative in which he comments upon
the treaty of Chunar. Mark, my Lords, what the man himself says of the
whole military service.
"Notwithstanding the great benefit which the Company would have derived
from such an augmentation of their military force as these troops
constituted, ready to act on any emergency, prepared and disciplined
without any charge on the Company, as the institution professed, until
their actual services should be required, I have observed some evils
growing out of the system, which, in my opinion, more than
counterbalanced those advantages, had they been realized in their
fullest effect. The remote stations of these troops, placing the
commanding officers beyond the notice and control of the board, afforded
too much opportunity and temptation for unwarrantable emoluments, and
excited the contagion of peculation and rapacity throughout the whole
army. A most remarkable and incontrovertible proof of the prevalence of
this spirit has been seen in the court-martial upon Captain Erskine,
where the court, composed of officers of rank and respectable
characters, unanimously and honorably, most honorably, acquitted him
upon an acknowledged fact which in times of stricter discipline would
have been deemed a crime deserving the severest punishment."
I will now call your Lordships' attention to another extract from the
same comment of Mr. Hastings, with respect to the removal of the
Company's servants, civil and military, from the court and service of
the Vizier.
"I was actuated solely by motives of justice to him and a regard to the
honor of our national character. In removing those gentlemen I diminish
my own influence, as well as that of my colleagues, by narrowing the
line of patronage; and I expose myself to obloquy and resentment from
those who are immediately affected by the arrangement, and the long
train of their friends and powerful patrons. But their numbers, their
influence, and the enormous amount of their salaries, pensions, and
emoluments, were an intolerable burden on the revenues and authority of
the Vizier, and exposed us to the envy and resentment of the whole
country, by excluding the native servants and adherents of the Vizier
from the rewards of their services and attachment."
My Lords, you have here Mr. Hastings's opinion of the whole military
service. You have here the authority and documents by which he supports
his opinion. He states that the contagion of peculation had tainted all
the frontier stations, which contain much the largest part of the
Company's army. He states that this contagion had tainted the whole
army, _everywhere:_ so that, according to him, there was, throughout the
Indian army, an universal taint of peculation. My Lords, peculation is
not a military vice. Insubordination, want of attention to duty, want of
order, want of obedience and regularity, are military vices; but who
ever before heard of peculation being a military vice? In the case
before you, it became so by employing military men as farmers of
revenue, as masters of markets and of gunges. This departure from the
military character and from military duties introduced that peculation
which tainted the army, and desolated the dominions of the Nabob Vizier.
I declare, when I first read the passage which has been just read to
your Lordships, in the infancy of this inquiry, it struck me with
astonishment that peculation should _at all_ exist as a military vice;
but I was still more astonished at finding Warren Hastings charging the
_whole_ British army with being corrupted by this base and depraved
spirit, to a degree which tainted even their judicial character. This,
my Lords, is a most serious matter. The judicial functions of military
men are of vast importance in themselves; and, generally speaking, there
is not any tribunal whose members are more honorable in their conduct
and more just in their decisions than those of a court-martial. Perhaps
there is not a tribunal in this country whose reputation is really more
untainted than that of a court-martial. It stands as fair, in the
opinion both of the army and of the public, as any tribunal, in a
country where _all_ tribunals stand fair. But in India, this unnatural
vice of peculation, which has no more to do with the vices of a military
character than with its virtues, this venomous spirit, has pervaded the
members of military tribunals to such an extent, that they acquit,
honorably acquit, _most_ honorably acquit a man, "upon an acknowledged
fact which in times of stricter discipline would have been deemed a
crime deserving the severest punishment."
Who says all this, my Lords? Do I say it? No: it is Warren Hastings who
says it. He records it. He gives you his vouchers and his evidence, and
he draws the conclusion. He is the criminal accuser of the British army.
He who sits in that box accuses the whole British army in India. He has
declared them to be so tainted with peculation, from head to foot, as to
have been induced to commit the most wicked perjuries, for the purpose
of bearing one another out in their abominable peculations. In this
unnatural state of things, and whilst there is not one military man on
these stations of whom Mr. Hastings does not give this abominably
flagitious character, yet every one of them have joined to give him the
benefit of their testimony for his honorable intentions and conduct.
In this tremendous scene, which he himself exposes, are there no signs
of this captain-generalship which I have alluded to? Are there no signs
of this man's being a captain-general of iniquity, under whom all the
spoilers of India were paid, disciplined, and supported? I not only
charge him with being guilty of a thousand crimes, but I assert that
there is not a soldier or a civil servant in India whose culpable acts
are not owing to this man's example, connivance, and protection.
Everything which goes to criminate them goes directly against the
prisoner. He puts them in a condition to plunder; he suffered no native
authority or government to restrain them; and he never called a man to
an account for these flagitious acts which he has thought proper to
bring before his country in the most solemn manner and upon the most
solemn occasion.
I verily believe, in my conscience, his accusation is not true, in the
excess, in the generality and extravagance in which he charges it. That
it is true in a great measure we cannot deny; and in that measure we, in
our turn, charge him with being the author of all the crimes which he
denounces; and if there is anything in the charge beyond the truth, it
is he who is to answer for the falsehood.
I will now refer your Lordships to his opinion of the civil service, as
it is declared and recorded in his remarks upon the removal of the
Company's civil servants by him from the service of the Vizier.--"I
was," says he, "actuated solely by motives of justice to him [the Nabob
of Oude], and a regard to the honor of our national character."--Here,
you see, he declares his opinion that in Oude the civil servants of the
Company had destroyed the national character, and that therefore they
ought to be recalled.--"By removing these people," he adds, "I diminish
my patronage."--But I ask, How came they there? Why, through this
patronage. He sent them there to suck the blood which the military had
spared. He sent these civil servants to do ten times more mischief than
the military ravagers could do, because they were invested with greater
authority.--"If," says he, "I recall them from thence, I lessen my
patronage."--But who, my Lords, authorized him to become a patron? What
laws of his country justified him in forcing upon the Vizier the civil
servants of the Company? What treaty authorized him to do it? What
system of policy, except his own wicked, arbitrary system, authorized
him to act thus?
He proceeds to say, "I expose myself to obloquy and resentment from
those who are immediately affected by the arrangement, and the long
train of their friends and powerful patrons."--My Lords, it is the
constant burden of his song, that he cannot do his duty, that he is
fettered in everything, that he fears a thousand mischiefs to happen to
him,--not from his acting with carefulness, economy, frugality, and in
obedience to the laws of his country, but from the very reverse of all
this. Says he, "I am afraid I shall forfeit the favor of the powerful
patrons of those servants in England, namely, the Lords and Commons of
England, if I do justice to the suffering people of this country."
In the House of Commons there are undoubtedly powerful people who may be
supposed to be influenced by patronage; but the higher and more powerful
part of the country is more directly represented by your Lordships than
by us, although we have of the first blood of England in the House of
Commons. We do, indeed, represent, by the knights of the shires, the
landed interest; by our city and borough members we represent the
trading interest; we represent the whole people of England collectively.
But neither blood nor power is represented so fully in the House of
Commons as that order which composes the great body of the people,--the
protection of which is our peculiar duty, and to which it is our glory
to adhere. But the dignities of the country, the great and powerful, are
represented eminently by your Lordships. As we, therefore, would keep
the lowest of the people from the contagion and dishonor of peculation
and corruption, and above all from exercising that vice which, among
commoners, is unnatural as well as abominable, the vice of tyranny and
oppression, so we trust that your Lordships will clear yourselves and
the higher and more powerful ranks from giving the smallest countenance
to the system which we have done our duty in denouncing and bringing
before you.
My Lords, you have heard the account of the civil service. Think of
their numbers, think of their influence, and the enormous amount of
their salaries, pensions, and emoluments! They were, you have heard, an
intolerable burden on the revenues and authority of the Vizier; and they
exposed us to the envy and resentment of the whole country, by excluding
the native servants and adherents of the prince from the just reward of
their services and attachments. Here, my Lords, is the whole civil
service brought before you. They usurp the country, they destroy the
revenues, they overload the prince, and they exclude all the nobility
and eminent persons of the country from the just reward of their
service.
Did Mr. Francis, whom I saw here a little while ago, send these people
into that country? Did General Clavering, or Colonel Monson, whom he
charges with this system, send them there? No, they were sent by
himself; and if one was sent by anybody else for a time, he was soon
recalled: so that he is himself answerable for all the peculation which
he attributes to the civil service. You see the character given of that
service; you there see their accuser, you there see their defender, who,
after having defamed both services, military and civil, never punished
the guilty in either, and now receives the prodigal praises of both.
I defy the ingenuity of man to show that Mr. Hastings is not the defamer
of the service. I defy the ingenuity of man to show that the honor of
Great Britain has not been tarnished under his patronage. He engaged to
remove all these bloodsuckers by the treaty of Chunar; but he never
executed that treaty. He proposed to take away the temporary brigade;
but he again established it. He redressed no grievance; he formed no
improvements in the government; he never attempted to provide a remedy
without increasing the evil tenfold. He was the primary and sole cause
of all the grievances, civil and military, to which the unhappy natives
of that country were exposed; and he was the accuser of all the
immediate authors of those grievances, without having punished any one
of them. He is the accuser of them all. But the only person whom he
attempted to punish was that man who dared to assert the authority of
the Court of Directors, and to claim an office assigned to him by them.
I will now read to your Lordships the protest of General Clavering
against the military brigade.--"Taking the army from the Nabob is an
infringement of the rights of an independent prince, leaving only the
name and title of it without the power. It is taking his subjects from
him, against every law of Nature and of nations."
I will next read to your Lordships a minute of Mr. Francis's.--"By the
foregoing letter from Mr. Middleton it appears that he has taken the
government of the Nabob's dominions directly upon himself. I was not a
party to the resolutions which preceded that measure, and will not be
answerable for the consequences of it."
The next paper I will read is one introduced by the Managers, to prove
that a representation was made by the Nabob respecting the expenses of
the gentlemen resident at his court, and written after the removal
before mentioned.
_Extract of a Letter from the Vizier to Mr. Macpherson, received
the 21st April, 1785._
"With respect to the expenses of the gentlemen who are here, I have
before written in a covered manner; I now write plainly, that I have
no ability to give money to the gentlemen, because I am indebted
many lacs of rupees to the bankers for the payment of the Company's
debt. At the time of Mr. Hastings's departure, I represented to him
that I had no resources for the expenses of the gentlemen. Mr.
Hastings, having ascertained my distressed situation, told me that
after his arrival in Calcutta he would consult with the Council, and
remove from hence the expenses of the gentlemen, and recall every
person except the gentlemen in office here. At this time that all
the concerns are dependent upon you, and you have in every point
given ease to my mind, according to Mr. Hastings's agreement, I hope
that the expenses of the gentlemen maybe removed from me, and that
you may recall every person residing here beyond the gentlemen in
office. Although Major Palmer does not at this time demand anything
for the gentlemen, and I have no ability to give them anything, yet
the custom of the English gentlemen is, when they remain here, they
will in the end ask for something. This is best, that they should be
recalled."
I think so, too; and your Lordships will think so with me; but Mr.
Hastings, who says that he himself thought thus in September, 1781, and
engaged to recall these gentlemen, was so afraid of their powerful
friends and patrons here, that he left India, and left all that load of
obloquy upon his successors. He left a Major Palmer there, in the place
of a Resident: a Resident of his own, as your Lordships must see; for
Major Palmer was no Resident of the Company's. This man received a
salary of about 23,000_l._ a year, which he declared to be less than his
expenses; by which we may easily judge of the enormous salaries of those
who make their fortunes there. He was left by Mr. Hastings as his
representative of peculation, his representative of tyranny. He was the
second agent appointed to control all power ostensible and unostensible,
and to head these gentlemen whose "custom," the Nabob says, "was in the
end to ask for money." Money they must have; and there, my Lords, is the
whole secret.
* * * * *
I have this day shown your Lordships the entire dependence of Oude on
the British empire. I have shown you how Mr. Hastings usurped all power,
reduced the prince to a cipher, and made of his minister a mere creature
of his own,--how he made the servants of the Company dependent on his
own arbitrary will, and considered independence a proof of corruption.
It has been likewise proved to your Lordships that he suffered the army
to become an instrument of robbery and oppression, and one of its
officers to be metamorphosed into a farmer-general to waste the country
and embezzle its revenues. You have seen a clandestine and fraudulent
system, occasioning violence and rapine; and you have seen the prisoner
at the bar acknowledging and denouncing an abandoned spirit of rapacity
without bringing its ministers to justice, and pleading as his excuse
the fear of offending your Lordships and the House of Commons. We have
shown you the government, revenue, commerce, and agriculture of Oude
ruined and destroyed by Mr. Hastings and his creatures. And to wind up
all, we have shown you an army so corrupted as to pervert the
fundamental principles of justice, which are the elements and basis of
military discipline. All this, I say, we have shown you; and I cannot
believe that your Lordships will consider that we have trifled with your
time, or strained our comments one jot beyond the strict measure of the
text. We have shown you a horrible scene, arising from an astonishing
combination of horrible circumstances. The order in which you will
consider these circumstances must be left to your Lordships.
At present I am not able to proceed further. My next attempt will be to
bring before you the manner in which Mr. Hastings treated movable and
immovable property in Oude, and by which he has left nothing undestroyed
in that devoted country.
END OF VOL. XI.
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