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• History of British India.
• Book VI.
• Chap. I.
• Chap. II.
• Chap III.
• Chap IV.
• Chap V.
• Chap VI.

CHAP. II.

BOOK VI. Chap. 2. 1788.The trial of Mr. Hastings commenced in Westminster Hall on the 13th day of February, 1788. So great was the interest which this extraordinary event had excited, that persons of the highest elevation crowded to the scene.1 After two days were spent in the preliminary and accustomed ceremonies, on the 15th Mr. Burke began. His oration was continuedBOOK VI. Chap. 2. 1788. on the 16th, 18th and 19th, and lasted four days. It was the object of this address to convey to the members of the court a general idea of the character and circumstances of the people of Hindustan; of their situation under the government of Englishmen; of the miseries which he represented them as enduring through the agency of Mr. Hastings; and of the motives, namely, pecuniary corruption, to which he ascribed the offences with which that Governor was charged. The most remarkable passage in the speech was that which related to the enormities imputed to Devi, or Deby Sing; a native placed by Mr. Hastings in a situation of confidence and power. It cannot be omitted; both because the delivery of it is matter of history, whatever may be the proper judgment with respect to the accusations which it brought; and, also because it gave birth to several subsequent proceedings on the trial. This man was admitted; according to the accuser, improperly, and for corrupt ends; to farm the revenues of a large district of country. After a time, complaints arrived at Calcutta, of cruelties which he practised, in extorting money from the people; upon whom, contrary to his instructions, he had raised the rents. Mr. Patterson, one of the gentlemen in the civil service of the Company, was deputed, in the capacity of a Commissioner, to inquire into the foundation of the complaints. It was from his report, that the statements of Mr. Burke, reported in the following words, were derived.

“The poor Ryots, or husbandmen, were treated BOOK VI. Chap. 2. 1788.in a manner that would never gain belief, if it was not attested by the records of the Company; and Mr. Burke thought it necessary to apologize to their Lordships for the horrid relation, with which he would be obliged to harrow up their feelings; the worthy Commissioner Patterson, who had authenticated the particulars of this relation, had wished that, for the credit of human nature, he might have drawn a veil over them; but as he had been sent to inquire into them, he must, in discharge of his duty state those particulars, however shocking they were to his feelings. The cattle and corn of the husbandmen were sold for less than a quarter of their value, and their huts reduced to ashes! the unfortunate owners were obliged to borrow from usurers, that they might discharge their bonds, which had unjustly and illegally been extorted from them while they were in confinement; and such was the determination of the infernal fiend, Devi Sing, to have these bonds discharged, that the wretched husbandmen were obliged to borrow money, not at twenty, or thirty, or forty, or fifty, but at SIX HUNDRED per cent. to satisfy him! Those who could not raise the money, were most cruelly tortured; cords were drawn tight round their fingers, till the flesh of the four on each hand was actually incorporated, and became one solid mass: the fingers were then separated again by wedges of iron and wood driven in between them.—Others were tied two and two by the feet, and thrown across a wooden bar, upon which they hung, with their feet uppermost; they were then beat on the soles of the feet, till their toe-nails dropped off.

They were afterwards beat about the head till the blood gushed out at the mouth, nose, and ears; they were also flogged upon the naked body with bamboo canes, and prickly bushes, and, above all, with some poisonous weeds, which were of a mostBOOK VI. Chap. 2. 1788. caustic nature, and burnt at every touch. The cruelty of the monster who had ordered all this, had contrived how to tear the mind as well as the body; he frequently had a father and son tied naked to one another by the feet and arms, and then flogged till the skin was torn from the flesh; and he had the devilish satisfaction to know that every blow must hurt; for if one escaped the son, his sensibility was wounded by the knowledge he had that the blow had fallen upon his father: the same torture was felt by the father, when he knew that every blow that missed him had fallen upon his son.

The treatment of the females could not be described:—dragged forth from the inmost recesses of their houses, which the religion of the country had made so many sanctuaries, they were exposed naked to public view: the virgins were carried to the Court of Justice, where they might naturally have looked for protection: but now they looked for it in vain; for in the face of the Ministers of Justice, in the face of the spectators, in the face of the sun, those tender and modest virgins were brutally violated. The only difference between their treatment and that of their mothers was, that the former were dishonoured in the face of day, the latter in the gloomy recesses of their dungeon. Other females had the nipples of their breasts put in a cleft bamboo, and torn off. What modesty in all nations most carefully conceals this monster revealed to view, and consumed by slow fires; may, some of the tools of this monster Devi Sing had, horrid to tell! carried their unnatural brutality so far as to drink in the source of generation and life.

Here Mr. Burke dropped his head upon his hands a few minutes; but having recovered himself, BOOK VI. Chap. 2. 1788.said, that the fathers and husbands of the hapless females were the most harmless and industrious set of men. Content with scarcely sufficient for the support of nature, they gave almost the whole produce of their labour to the East India Company: those hands which had been broken by persons under the Company’s authority, produced to all England the comforts of their morning and evening tea: for it was with the rent produced by their industry, that the investments were made for the trade to China, where the tea which we use was bought.”1

The next proceeding in the course of the trial wasBOOK VI. Chap. 2. 1788. a matter of great importance. As soon as Mr. Burke had finished his opening speech, Mr. Fox stood up, and explained to the Court the order of proceeding which it was the intention of the managers for the prosecution to adopt.

They proposed that one of the articles of impeachment only should be taken under consideration at one time; that the speakers and the evidence, both for the prosecution, and for the defence, should, in the usual manner, be heard on that individual article; that the sentence of the court should then be pronounced; and that the several charges should thus be treated, and thus disposed of, one after another, to the end.

The counsel for Mr. Hastings, three barristers, Mr. Law, Mr. Plomer, and Mr. Dallas, were asked by the Lords, if they agreed to the proposed course of procedure. Upon their declaration, that they desired the matter of accusation upon all the articles to be exhibited first, after which they would deliver all the matter of defence upon them all, when, lastly, the Court might decide upon them all, the parties were ordered to produce what they could urge in support of their respective demands.

Mr. Fox maintained, that the weight of evidence was best appreciated when fresh in the memory; that distinctness and clearness, notwithstanding the complexity of the subject, and facility of conception, notwithstanding its vastness, might, according to the method recommended by the managers, be to a considerable degree attained: whereas, according to the mode of procedure for which the lawyers contended, evidence would be decided on after it was forgotten, and such an accumulation of matter would be offered all at once to the mind, as no mind, without taking it piecemeal, was competent to manage.

In opposition to the order of proceeding, recommended by the managers, the allegations urged by the lawyers were; that such an order was contrary to ancient usage; that the cases offered by the managers as precedents did not apply, and in fact there was no precedent; that the mode proposed was contrary to the modes of procedure at common law; and that it was disadvantageous to the defendant. Mr. Law and Mr. Dallas specified one disadvantage, That in giving their answer upon one charge, they might be compelled to disclose to their adversary the defence which they meant to employ upon others. “My Lords,” said Mr. Law, “we are to come forward, on the first article, to state our case, and to produce all the evidence, and all the defence, we are to make on nineteen others. Is it just? It is reasonable? Is it what would be admitted in any other court of justice?BOOK VI. Chap. 2. 1788. On the first article we are immediately put under the necessity to sustain our defence; the cross examination of the prosecutor immediately attaches on those witnesses; they extract from them perhaps some evidence which may make it less necessary to call on their part such evidence as they want. Is that right?”1 It was further urged by Mr. Dallas, that as the charges had a close connexion, the evidence which applied to one, would sometimes be necessary for another, whence repetition and delay.

The Lords withdrew to their own chamber to deliberate, and adjourned the Court to the 22d. The Lord Chancellor Thurlow opened the question, in the chamber of the Lords, by strongly recommending, in a speech of considerable length, the order of proceeding contended for by the lawyers; and his proposition was adopted without a division. The business of the Court on the 22d was opened by the Lord Chancellor, proclaiming, “Gentlemen, I have in charge to inform you, that you are to produce all your evidence, in support of the prosecution, before Mr. Hastings is called upon for his defence.”

The historian, who is not bound by the opinion, either of the Judges, or of the prosecutors, is called upon to try if he can discover the decision which is pronounced by reason upon the facts of the case.

It will not, surely, admit of dispute, that a question will be decided most correctly, when all the evidence which bears upon it is most fully present to the memory, and every part of it receives its due portion of regard. As little will it admit of dispute, that two things contribute to that just appreciation of evidence, BOOK VI. Chap. 2. 1788.namely, recent delivery, and freedom from the mixture both of other evidence not bearing upon the point and of other questions distracting the attention. The truth of every affirmation is best seen, when the mind, as exempt as possible from every other thought, applies the proof immediately to the point which is in dispute; confronts the affirmative with the negative evidence; adjusts the balance, and decides. There cannot be a question, that for the purpose of ascertaining the truth, of estimating the evidence correctly, and arriving at a decision conformable to the facts, as they took place, the course recommended by the managers was the proper course. As little can it be doubted, that for the purposes of lawyer-craft; for all the advantages to be gained by the suppression of evidence, by the loss of it from the memory, by throwing the Judges into a state of confusion and perplexity, when the mind becomes passive, and allows itself to be led by the adviser who seems most confident in his own opinion; the course, successfully contended for by the lawyers, was infinitely the best. The course, recommended by the managers, was most favorable to an innocent defendant, to the man for whose advantage it is that the truth should be correctly ascertained. The course successfully contended for by the lawyers was most favourable to a guilty defendant, to the man for whose advantage it is that the truth should not be correctly ascertained.

If truth is the end, we have, then, arrived at a decision. To this reasoning and its conclusion, there is not, in the harangues of the lawyers, a title opposed. On this, the only question at issue, they were silent: and diverted the attention to other objects. They did not inquire, whether the path pointed out was that which led to the discovery of truth; but whether the Lords, or the lawyers, had been accustomedBOOK VI. Chap. 2. 1788. to tread in that path before. We shall now, however, decide, that whenever the path which leads to truth is discovered, it is no longer the question who has not walked in it before, but who shall best walk in it for the future. When the path which leads to truth is discovered, it is a wretched solicitude, which endeavours to find out that our predecessors have not walked in it, in order that we may follow their unhappy example, instead of proceeding in the direction which reason points out as the only one that is good. As for the practice of the lawyers’ courts, if that was ascertained to lead in a direction not the most favourable to the discovery of truth, there was no obligation on the Lords, to follow it.

After this, the lawyers had two allegations, and no more. There was Mr. Law’s complaint, that they would be obliged, on one charge, to disclose the grounds of their defence on all. This is a complaint, at being obliged to contribute to the discovery of truth. It is a demand, that a door should be left open to lawyer-craft, for the purpose of defeating the discovery of truth. No disadvantage, but that which the disclosure of truth inferred, could thus arise to the defendant. The necessity of producing evidence would be equal to both parties. If the defendant were obliged, in answering one charge, to disclose the grounds of his defence on others, the accusers would be equally obliged to disclose the grounds of their accusation. The party who by this course would gain, is the party to whom the truth would be favourable; the party who would lose, the party to whom the truth would be noxious. According to the course of the lawyers, the advantage and disadvantage change their sides.

A protest, on the subject, well worthy of a place in the history of this trial, was entered on the Journals of the Lords:

“DISSENTIENT. 1st. Because we hold it to be primarily essential to the due administration of justice, that they who are to judge have a full, clear, and distinct knowledge of every part of the question on which they are ultimately to decide: and in a cause of such magnitude, extent, and variety, as the present, where issue is joined on acts done at times and places so distant, and with relation to persons so different, as well as on crimes so discriminated from each other by their nature and tendency, we conceive that such knowledge cannot but with extreme difficulty be obtained without a separate consideration of the several articles exhibited.

2d. Because we cannot with equal facility, accuracy, and confidence, apply and compare the evidence adduced, and more especially the arguments urged by the prosecutors on one side and the defendant on the other, if the whole charge be made one cause, asBOOK VI. Chap. 2. 1788. if the several articles be heard in the nature of separate causes.

3d. Because, admitting it to be a clear and acknowledged principle of justice, that the defendant against a criminal accusation should be at liberty to make his defence in such form and manner as he shall deem most to his advantage; we are of opinion, that such principle is only true so far forth as the use and operation thereof shall not be extended to defeat the ends of justice, or to create difficulties and delays equivalent to a direct defeat thereof; and, because we are of opinion, that the proposition made by the managers of the House of Commons, if it had been agreed to, would not have deprived the defendant in this prosecution, of the fair and allowable benefit of such principle taken in its true sense; inasmuch as it tended only to oblige him to apply his defence specially and distinctly to each of the distinct and separate articles of the Impeachment, in the only mode in which the respective merits of the charge and of the defence can be accurately compared and determined, or even retained in the memory, and not to limit or restrain him in the form and manner of constructing, explaining, or establishing his defence.

4th. Because, in the case of the Earl of Middle-sex, and that of the Earl of Strafford, and other cases of much less magnitude, extent and variety, than the present, this House has directed the proceedings to be according to the mode now proposed by the managers on the part of the Commons.

5th. Because, even if no precedent had existed, yet, from the new and distinguishing circumstances of the present case, it would have been the duty of this House to adopt the only mode of proceeding, BOOK VI. Chap. 2. 1788.which, founded on simplicity, can ensure perspicuity, and obviate confusion.

6th. Because we conceive, that the accepting the proposal made by the Managers would have been no less consonant to good policy than to substantial justice, since by possessing the acknowledged right of preferring their articles as so many successive Impeachments, the Commons have an undoubted power of compelling this House in future virtually to adopt that mode which they now recommend; and if they should ever be driven to stand on this extreme right, jealousies must unavoidably ensure between the two Houses, whose harmony is the vital principle of national prosperity; public justice must be delayed, if not defeated; the innocent might be harassed, and the guilty might escape.

7th. Because many of the reasons upon which a different mode of conducting their prosecution has been imposed upon the Commons, as alleged in the debate upon this subject, appear to us of a still more dangerous and alarming tendency than the measure itself, forasmuch as we cannot hear but with the utmost astonishment and apprehension, that this Supreme Court of Judicature is to be concluded by the instituted rules of the practice of inferior Courts; and that the Law of Parliament, which we have ever considered as recognized and reverenced by all who respected and understood the laws and the constitution of this country, has neither form, authority, nor even existence; a doctrine which we conceive to strike directly at the root of all parliamentary proceeding by impeachment, and to be equally destructive of the established rights of the Commons, and of the criminal jurisdiction of the Peers, and consequently to tend to the degradation of both Houses of Parliament, to diminish the vigour ofBOOK VI. Chap. 2. 1788. public justice, and to subvert the fundamental principles of the constitution. [Signed]

After withdrawing for a few minutes to deliberate, the managers for the Commons submitted to the decision of the Lords, and proceeded to the investigation upon the first of the charges; that relating to the conduct of the defendant toward the Rajah of Benares, Cheyte Sing. Mr. Fox addressed the Court as accuser, and Mr. Grey followed him the succeeding day. This was the eighth day of the trial; and time was consumed in hearing evidence, with disputes raised about its admission or exclusion, from that till the 13th, when Mr. Anstruther summed up, and commented upon the matter adduced. Of the evidence, or the observations by which it was attended, both for the accusation and the defence, as it is hoped that the preceding narrative has already communicated a just conception of the facts, a repetition would be attended with little advantage; and the incidents by which the course of the proceedings was affected will appear, in most parts of the trial, to include nearly the whole of what the further elucidation of this memorable transaction requires.

On the 29th of February, which was the eleventh day of the trial, Mr. Benn, a witness, professing forgetfulness, or speaking indeterminately, on a point BOOK VI. Chap. 2. 1788.on which he appeared to the managers to have spoken more determinately, when previously examined before the House of Commons, was interrogated as to the tenor of his evidence on that preceding occasion. The barristers, of counsel for the defendant, had cavilled several times before at the questions of the accusers. They now made a regular stand.

Mr. Law, and Mr. Plomer, argued, that a party should not be allowed to put any questions tending to lessen the credit of his own witness. Their reasons were, that such a proceeding was not allowed in the courts of law; that if the party believed his witness unworthy of credit, he acted fraudulently, in proposing to take the benefit of his evidence, if favourable; to destroy his credit, if the reverse; and that such an inquisition is a hardship to the man upon whom it is imposed.

The managers for the Commons contended; That such a question as they had put was conformable to the practice both of the courts of law, and of the high court of parliament; as appeared by the trial of Lord Lovat, by the permission given to put leading questions to a reluctant witness, and the practice in the courts of law of questioning a witness as to any deposition he may have made on the same subject in a court of equity: That most of the witnesses, who could be summoned upon this trial, were persons whose prejudices, whose interests, whose feelings, were all enlisted on the side of the defendant; and who would not, if they could help it, tell any thing to his prejudice: And that hence, in all cases similar to this, the privilege for which they contended was essential to justice.1

It is evident from former reasonings, that the firstBOOK VI. Chap. 2. 1788. and principal plea of the lawyers is altogether foreign to the question, and deserves not a moment’s regard. A contrary practice was universal in the courts of law. What then? The question of the wise man is, not what is done in the courts of law, but what ought to be done.

Witnesses would suffer by sustaining the proposed inquisition. But surely inquisition is not a worse thing, performed by one, than performed by another, party. Inquisition is performed upon every witness by the cross examination. But if inquisition is to be performed, what objection is there to giving truth the benefit of it? Why confine it to one of the parties?

We now come to that plea of theirs which alone has any obscurity in it. A party ought not to bring a witness, whose testimony is unworthy of trust. To this two things are to be given in answer. First, he may bring a witness, not knowing that he is unworthy of trust. Secondly, he may bring a witness, knowing that he is very imperfectly worthy of trust, because he has none that is better.

If a party brings a witness, expecting he will speak the truth, but finds that he utters falsehood, he is without resource, unless he is permitted to show that what is uttered is falsehood, or at any rate destitute of some of the requisite securities for truth. Upon these terms, a man need only be admitted a witness, to defeat, when he pleases, the cause of justice. This is to shut up one of the doors to the discovery of truth; and whatever in judicature shuts up any of the doors to the discovery of truth, by the same operation opens a door to the entrance of iniquity. Let us inquire what danger can arise from the privilege to which the lawyers object. If the BOOK VI. Chap. 2. 1788.testimony is really true, to scrutinize is the way to confirm, not weaken it. If the credibility of the witness is good, the more completely it is explored, the more certainly will its goodness appear. Make the most unfavourable supposition; that a party brings a witness, expecting mendacity; and, finding truth, endeavours to impair his credit. This is a possible case: Let us see what happens. All that a party can do to weaken the credit of a witness, is to point out facts which show him to be capable of mendacity. The credibility of a witness is either strong, or weak. If strong, the attempts of a party who stands in the relation of a summoning party, to detract from it, can hardly ever have any other effect than to confirm it, and cast suspicion on his own designs. If weak, he can only show the truth, which ought always to be shown; and if it appears, that he brought a witness, known to be mendacious, whose character he discloses only when he speaks the truth, in this case too he affords presumption against himself. Even when a witness, who has a character for mendacity, speaks the truth, it is fit that his character should be made known to the judge. It is not enough that one of the parties happens to know the conformity between the testimony and the facts. The satisfaction of the public is of more importance than that of an individual; and for the satisfaction of the public, it is necessary that all the requisite securities for the discovery of truth should have been employed.

It very often happens, that the only witness to be had is a mendacious and reluctant witness; a partner, for instance, in the crime. Justice may yet have some chance, if the party whose interest it is that the truth should be discovered is allowed the use of all the most efficient instruments of extraction. But if his witness declares, for example, that he does not recollect, and the party is not allowed to adduceBOOK VI. Chap. 2. 1788. evidence to show that it is impossible he should not recollect, a witness of such a description has a license put into his hand to defeat the ends of justice. It is thus abundantly evident that the honest suitor has often the greatest possible occasion for the power of discrediting his own witness, and must be defeated of his rights if deprived of it. Let us see what possible evil the dishonest suitor can effect by being possessed of it. He wishes, for example, to prove the existence of a fact which never had existence; and he brings a man whom he expects to swear to it, but who disappoints him. Here it is plain that to discredit his witness does no harm; the false fact remains unproved. Let us suppose that he brings, to disprove an actual fact, a witness who disappoints him. In this case he gains as little by discrediting his witness; the true fact is not in the least by that means disproved. But these two are the only possible sets of cases, to which for a fraudulent purpose evidence can be adduced. It appears then, we may almost say, demonstratively, that the power of discrediting his own witness may very often indeed be of the utmost importance to the honest suitor, can never, or almost never, be of any use to the dishonest one. It is a power, therefore, essential to the ends of justice.1

The Lords, however, in conformity with the wishes of the lawyers, and with a grand lawyer at their head, having adjourned to their own chamber for the BOOK VI. Chap. 2. 1788.purpose of deliberation, opened the business, the day on which the court was next convened, by informing the managers for the Commons, that it was not allowed them to put the question which they had last proposed. “The managers for the Commons,” say the printed Minutes of Evidence, “requested leave to withdraw for a while.—The managers for the Commons, being returned, said it was with the greatest concern they informed the House, that it was impossible for them to acquiesce in the decision of the House: That they felt it so important, not only to the present question, but to the whole of the trial, that they should hold themselves bound to go back to the House of Commons, who sent them thither, to take instructions from them how to proceed—if they did not feel it necessary to proceed with vigour and dispatch, which might make them, for the present, wave their opinion upon the subject, but under a protest the most strong, that they had a right to put the question proposed, and that if they should think a similar question necessary to be put in the course of the future proceedings, they would propose it for the more deliberate judgment of the House.”1

On the 10th day of April, and thirteenth of the trial, the evidence for the prosecution, on the first article of impeachment, was closed. On the following day it was summed up by Mr. Anstruther; and this part of the trial was concluded by some observations which Mr. Burke requested permission to adduce, on a peculiar feature of the evidence, to which the nature of the circumstances compelled the complainants in this case to resort. It had been already remarked that of the witnesses who could be called upon thisBOOK VI. Chap. 2. 1788. prosecution, the greater part from powerful causes would be favourable to the defendant. It was now remarked that they would be lenient to the crimes. “It was to be recollected, that some of those men who had been called to the bar of the court, had been the instruments of that tyranny which was now arraigned. Those who were deputed to oppress were to be heard with caution when they spoke of the measure of the oppression. It was easy to be seen that those who had inflicted the injustice would not use the harshest terms when speaking of its measure and rate.”1

On the 15th day of April, and the fourteenth of the trial, the proceedings were opened on the second article of the accusation; or that, relating to the Begums of Oude. Mr. Adam, in a speech of great length, exhibited a view of the allegations. On the following day, Mr. Pelham commented on the answer of Mr. Hastings, and evidence began to be heard.

The extreme want of recollection, professed by Mr. Middleton, and the embarrassment and confusion of his statements, having drawn down certain strictures from Mr. Sheridan, “I must take the liberty,” said Mr. Law, the counsel, “of requesting, that the Honourable Manager will not make comments on the evidence of the witness, in the presence of the witness. It will tend to increase the confusion of a witness who is at all confused; and affect the confidence of the most confident,—I shall, therefore, hope the Honourable Manager will, from humanity and decorum, attend to it. I am sure I do not mention it out of disrespect to him.”2 This passage is adduced BOOK VI. Chap. 2. 1788.to show the opinion of a person, of great eminence in the law, on a matter of some importance—the brow-beating of a witness.

The courts in which, by the usual steps, he rose to preside, are justly designated, as, of all the places, set apart for the administration of justice, those in which the rule of humanity and decorum, here set up by the advocate, is the most grossly and habitually violated. The advantage taken of the embarrassment of a witness, who really appears desirous to conceal or contradict the truth, is not of course the practice which it is meant to condemn. What excites the disgust and indignation of every honest spectator, from every quarter of the globe, is the attempt so often made, and so often made successfully, to throw an honest witness into confusion and embarrassment, for the sake of destroying the weight of his testimony, and defeating the cause of truth; the torture unnecessarily and wantonly inflicted upon the feelings of an individual, to show off a hireling lawyer, and prove to the attorneys his power of doing mischief.

Mr. Middleton availed himself to an extraordinary extent of the rule, a rule upheld by the Lords; that a witness might refuse to answer a question, which tended to criminate himself. This is a rule, which if thieves, robbers, and murderers, were the makers of law, one would not be surprised at finding in force and repute. That the personages, by whom it was established, wished the discovery of guilt, it is not easy to believe; for so far as it operates, the impunity of the criminal is secured.

On the 30th day of May, thirty-first of the trial, the evidence for the prosecution on the subject of the Begums was closed; and on the following, Mr. Sheridan began to present the view of it which he wished to imprint upon the minds of the judges. Four days were occupied in the delivery of the speech; andBOOK VI. Chap. 2. 1789. this part of the business was concluded on the 13th of June, when the Lords adjourned to the first Tuesday in the next session of parliament.

Before the time which was destined for re-assembling the parliament, the event occurred of the mental derangement of the King. This delayed the resumption of proceedings till the 21st of April, 1789. On that day, the thirty-sixth day of the trial, the article of impeachment, relating to the receipt of presents, was opened by Mr. Burke. The intermediate articles were omitted, partly as involved in the question respecting the Begums of Oude, and partly for the avoidance of delay, of which complaints were now industriously raised and dispersed.

Having stated in his speech those facts, the first information of which was derived from the Rajah Nuncomar, the manager declared that, “if the counsel for the defendant should be so injudicious as to bring forward the conviction of the Rajah, for the purpose of destroying the effect of these charges, he would open that scene of blood to their Lordships’ view, and show that Mr. Hastings had murdered Nuncomar by the hands of Sir Elijah Impey.” Six days afterwards, that is on the 27th of April, when the manager had spoken for two days, Major Scott presented to the House of Commons a petition from Mr. Hastings, complaining that Mr. Burke had adduced against him a variety of accusations extraneous to the charges found by that House; and especially had accused him of having murdered Nuncomar by the hands of Sir Elijah Impey. Upon the subject of this petition several debates ensued. It was first disputed, whether the petition should be received; The managers contending, that the motion was irregular and unprecedented; that if every expression not agreeable to BOOK VI. Chap. 2. 1789.the feelings of the party accused, were improper in a criminal prosecution, it would be necessary for criminal prosecutions to cease; that a practice of petitioning against the accuser would regularly convert him into a species of defendant, and, by creating a diversion, defeat the prosecution of crimes; that if the prosecutor misconduct himself in his function, it is for the tribunal before which he offends to animadvert upon his conduct; that the Commons might undoubtedly change their managers, if experience had proved them to be unfit for their office; that if the Commons, however, did not mean to withdraw their trust, it would be inconsistent, by any discrediting procedure, to weaken the hands of those who; contending with an adversary so numerously surrounded, so potently supported, and whose delinquencies, by distance of place, distance of time, complexity of matter, and difficulties of innumerable sorts by which the production of evidence was loaded, were to so extraordinary a degree covered from detection; had need of support, not of debilitation; and who required additional strength to enable them to remove the obstacles which separated the evidence from the facts.

The minister, and with him the ministerial part of the house, observing, that the Commons had given to their conductors limited powers, and that, if those conductors exceeded the bounds within which it was intended to confine them, it belonged to the Commons, not the Lords, to impose the due restraint, carried the vote that the petition ought to be received.

It was agreed, that the subject of the petition should undergo deliberation on the 30th of the month, and that in the mean time the Lords should be requested, by a message, to suspend proceedings on the trial.

On the 30th, instead of proceeding to the appointedBOOK VI. Chap. 2. 1789. deliberation, the House, on a suggestion of the Chancellor of the Exchequer, anxious, he said, to preserve the regularity of the proceedings of the House, communicated to the member whose conduct was charged, (though every body had seen him present at every thing which had passed) a formal notice, that a petition had been received, and that the House would take it into consideration on a day that was named. Mr. Burke, without objecting to the formality, said, that he had no wish for it on the present occasion; that he willingly cast himself on the honour and justice of the House; that he should gladly, if it were their pleasure, retire from the heavy burthen under which they had placed him; that in order to facilitate the inquiry he should not be present at their deliberation, and should in the mean time distinctly confess that he did employ the words, on account of which the complaint had been brought. In justification of them he observed; That circumstantial evidence constituted the proof by which the pecuniary corruption of Mr. Hastings was to be ascertained; that, in tracing the indications of concealed delinquency, a solicitude to destroy the sources of evidence had always been considered as one of the strongest; that it was for this purpose, the circumstances attending the death of Nuncomar had been exhibited; that this individual having offered to produce evidence of the pecuniary corruption of Mr. Hastings, and Mr. Hastings having lent himself both actively and passively to the destruction of this source of evidence, such behaviour on the part of Mr. Hastings, was circumstantial evidence of guilt; and that if circumstantial evidence must not be produced, because the mention of the scenes from which it is to be extracted may BOOK VI. Chap. 2. 1789.give pain to the individual, whose imputed guilt is the object of inquiry, the use of circumstantial evidence is precluded, and the punishment of some of the most dangerous crimes is rendered impossible.

On the following day, to which the consideration of the petition was postponed, a member of the House produced, and read a letter, from Mr. Burke. Its object was to exhibit again, and in a permanent form, the reasons which induced him to abstain from any share in the controversy respecting his own behaviour; and to declare that no appearance of disfavour, no discouragement, provided the House, whose servant he was, still left in his hands the trust which they had originally placed in them, should affect his attachment to the great service which he had undertaken to render, or slacken his diligence therein to the end. Describing the petition, as a stratagem, familiar to the politics of Calcutta, for turning the accuser into a defendant, and diverting inquiry, he adduced two reasons, for declining all defence; first, because he would not expose his sources of proof to the knowledge, nor his witnesses to the power of the defendant; secondly, because a man whose conduct is good, can hardly ever be injured by unjust accusations. “It would,” he said, “be a feeble sensibility on my part, which at this time of day would make me impatient of those libels, which by despising through so many years, I have at length obtained the honour of being joined in commission with this committee, and becoming an humble instrument in the hands of public justice.” The last of the reasons, which were thus solemnly adduced by Mr. Burke, reaches far beyond the limits of any single inquiry, however important; since it involves in it the freedom of the press; and shows, that, even when it is converted to abuse, it is not for the advantage of an innocent man to seek toBOOK VI. Chap. 2. 1789. restrain it; he will find his advantage in continuing through life to despise its excesses.

In favour of Mr. Hastings it was proposed that evidence should be taken to prove the words of which the petition complained; and Major Scott made a speech, in which, after giving his own explanation or the death of Nuncomar, he adduced as a defence on which he might rely, the circumstance, that after the facts relating to the death of Nuncomar were known in England, Mr. Hastings had been repeatedly chosen by the Ministers and the Company to fill the high office of chief ruler in India, and upon his return to England had never been called upon for one word of explanation in regard to that extraordinary affair.

That could not be a very sure defence of one party, which possibly was but a severe accusation of another.

In opposition to this proposal, and in order to explode the inquiry, it was moved, that the House do adjourn. After some contention, 158 members voted against ninety-seven, that evidence should be heard; and it was moved, that the short-hand writer be called in. This was not a proper mode, it was said, of proving the words of a member of parliament: And, in cavilling about evidence, the managers showed an inclination, not much better than that of their opponents.

It was moved, and upon division carried, that a Committee should be formed to search for precedents; and the House adjourned.

On the 4th of May the Committee reported that a precedent exactly in point was not to be found. A question then was raised, whether the examination of the short-hand writer should extend to the whole of the speech, or so much of it only as was the subject BOOK VI. Chap. 2. 1789.of complaint. The managers contended for the whole. Mr. Pitt spared not upon them either sarcasms or imputations. The question, urged to a division, went of course with the minister.

The words being proved, which Mr. Burke had begun with confessing, it was moved, “That no direction, or authority, was given by this House, to bring as a charge against Mr. Hastings, or to impute to him, the condemnation and execution of Nuncomar.” Mr. Pitt described the motion, as a necessary atonement which the House owed to Mr. Hastings for charging him with murder; at the same time disclaiming all intention of throwing blame on the managers. Mr. Fox had not much objection to the motion, as it implied no censure on Mr. Burke, nor restrained him in future from adducing the facts; but he threw out insinuations against the minister, as having belied his professions of fairness and impartiality; and contended that it was inconsistent with the honour and justice of the House to leave men to struggle with a duty, whom they found unequal to its discharge; that in proving a crime, it was essential to the ends of justice to be allowed to adduce every relevant fact: that it was no matter whether the fact was innocent or criminal: and that in courts of law themselves, it was a rule to admit one crime as evidence to prove another; a greater crime as evidence of a less; murder, for example, as proof of a fraud.

Mr. Sheridan represented that he had used the same words a year before, when no notice was taken of them: that Mr. Hastings was familiar with the imputation of causing the death of Nuncomar, for in his defence he had noticed it and repelled it by denial. With regard to the truth of the allegation, he called upon Mr. Pitt to rise, and say, if he dared, that Nuncomar, if he had not accused Mr. Hastings,BOOK VI. Chap. 2. 1789. would have died the death to which he was exposed. Nor was this all. Both he and Mr. Fox declared, that if they had occasion in the course of the trial to speak again of the death of Nuncomar, they would speak of it in terms exactly the same with those which Mr. Burke had employed.

“Mr. Pitt said he disregarded the insinuations against himself, but he and his friends should be watchful over the conduct of the managers, and take care they transgressed not the directions of the House.

Mr. Fox replied, that no tyrant ever behaved in a more barbarous manner over those whom he governed, nor with more treachery and fraud: that the privileges of the Commons were never more invaded, or endangered, within this century, nay, he would say within the last, than they had been within these few days.”

In consequence of this altercation, the ministerial party proposed to increase the asperity of the motion, by adding, that the words “he murdered him by the hands of Sir Elijah Impey,” ought not to have been spoken. Mr. Fox, after inveighing against the absurdity of condemning and not changing the managers, proposed the following amendment; “Notwithstanding in a former year no notice was taken of the words spoken by another manager to the same effect; and that Mr. Hastings in his defence had considered them as a charge, and given it a reply.” Upon his intimating very plainly his belief, that the ministerial party, after finding it convenient to vote for the impeachment, were now at work to defeat it of its end, and through the medium of a courtly censure meanly to convey sentiments which they were afraid or ashamed to avow, Colonel Phipps rose to order, describing BOOK VI. Chap. 2. 1789.the words which had been uttered as words not fit for that assembly, and which would not be tolerated in any other place. This being treated by Mr. Francis as an indecent menace, and receiving a severe reply from Mr. Fox, strangers, that is the public, as if something were about to occur which it was not good the public should know, were turned out. Upon their admission, after an hour’s exclusion, Mr. Pitt was repeating former arguments; to which, after Mr. Fox had made a reply, the House called impatiently for the question, Mr. Fox’s amendment was negatived without a division, and the original motion with its amendment passed by a majority of 133 to sixty-six. This was followed by a motion for a vote of thanks to the managers; but that was treated as premature, and resisted by a vote for the previous question.

The trial was resumed by the Lords on the 5th of May, when Mr. Burke continued his opening speech on the charge relating to presents. He announced with great dignity the proceedings which had taken place in the House of Commons, and the restrictions which they had imposed upon him with regard to the death of Nuncomar; at the same time declaring that he had used the word murder only because he could not find a stronger; that the opinion of which that word was the expression, was the result of a nine years’ laborious inquiry; and that it would be torn from him only with his life. On the 7th, which was the next day of the trial, he concluded his speech. It was left to the managers either to produce evidence on that part of the charge which Mr. Burke had opened, or to go on to that, the opening of which was reserved to another speaker; and the first was the mode which they preferred.

On this article of the impeachment it will be necessary, rather more than on the former articles, toBOOK VI. Chap. 2. 1789. enter into the particulars of the evidence; first, because in the history of the government and people it was fit to confine the narrative to events of which the consequences were important to the government and people, instead of complicating it with questions which had little reference beyond the character of an individual; and, secondly, because, at this stage, a variety of questions, on the admission or exclusion of evidence, arose; questions, the operation of which extended far beyond the limits of any single inquiry, and of which, without a knowledge of the circumstances, a due conception cannot be obtained.

The question, whether the defendant had or had not received presents corruptly, was divided into two parts. The first related to the presents, alleged to have been received previously to the arrival of Clavering, Monson, and Francis, the receipt of which Mr. Hastings had not voluntarily disclosed; the second related to the presents which he had received when Clavering and Monson were dead, one just before, the rest after the departure of Mr. Francis for Europe, presents which, after a time, he confessed that he had received, and which he said he received not for his own use, but that of the Company.

The principal object of the managers in the first part of this inquiry was to prove, that the appointment of Munny Begum to the office of Naib Subah was a corrupt appointment, made for the sake of the bribes, with which it was attended.

The first part of the proof was to show that the choice of Munny Begum was so improper and absurd, that as no good motive could be assigned for it, so the receipt of bribes was the only rational one it was possible to find.

First, the duties of the office of Naib Subah, as BOOK VI. Chap. 2. 1789.described by Mr. Hastings himself, were numerous and important; and such as could not be neglected, or misperformed, without the deepest injury, not only to the population of the country, but to the East India Company itself. In the long list of those duties, were the administration of justice and police, of which the Naib Subah was not, like our kings, the mere nominal head. The actual performance of a considerable portion of the business of penal judicature (for the civil was mostly attached to the office of Duan), was reserved to him; and the portion so reserved was the high and governing portion; without which the rest could not at all, or very imperfectly go on. The same was the case with the police, of which he was the principal organ. The conduct of all negotiations, and execution of treaties, that is, the charge of all the external relations of the state, though, really, as the agent of the Company, was ministerially vested in him. Nor was the administration of all that related to the person and family of the Nabob, who, though in a dependent condition, still maintained the appearance of sovereignty, a matter of which the performance was as easy as it might seem to be familiar.

That the Court of Directors had the same conception of the importance of the office of Naib Subah, the managers proved by one of their dispatches, in which they gave directions to choose for it “some person well qualified for the affairs of government,” that is, a person endowed with the rarest qualifications. Nay, so much stress did they lay upon this selection, that they actually pointed it out as one of the most signal proofs which their President and Council could afford, that the confidence they reposed in them was not misapplied.1

That Munny Begum, whom Mr. Hastings appointedBOOK VI. Chap. 2. 1789. to this office, was devoid of every requisite qualification for the proper performance of its duties, was, they contended, indisputable, from a variety of facts and considerations. In the first place, she was a woman, that is, a person, according to Oriental manners, shut out from the acquisition of knowledge and experience; acquainted with nothing but the inside of a haram; precluded from intercourse with mankind; and, in the state of seclusion to which she was chained, incapacitated, had she possessed the knowledge and talents, for those transactions with the world, in which the functions of government consist. In the next place they contended that she was a person, not only of the lowest rank, but of infamous life; having not been the wife of Meer Jaffier; but, a dancing girl; that is, a professional prostitute, who caught his fancy at an exhibition, and was placed as a concubine in his haram.1

They next proceeded to prove that, when Munny Begum was chosen, other persons were set aside, whose claims were greatly superior to hers.

In the first place, if a lady of the haram of Meer Jaffier was a proper choice, the mother of the Nabob was alive; and she, it was inferred, would have been a fitter guardian of her son during nonage, than a spurious step-mother, a person whose interests were so apt to be contrary to his.

In the next place, if there was any peculiar fitness for the office in a member of the family of the late Meer Jaffier, Ahteram ul Dowla, the brother of that Nabob, and the eldest surviving male of the family, BOOK VI. Chap. 2. 1789.had actually advanced his claims. But as Mr. Hastings had stated a reason for setting him aside, the managers offered to show by evidence that what he alleged was a false pretence.

The reason produced by Mr. Hastings was, that Ahteram ul Dowla had a family of his own; that he might, therefore, be tempted to shorten that life which stood between them and promotion: that his son and he, if Nabob and guardian, would possess an inconvenient, if not a dangerous, portion of power; that the establishment of any male in the office of Naib Subah would prevent the Company from availing themselves of the minority, to withdraw from the Nabob a still greater share of his power; and that, until a greater share of power were withdrawn from the Nabob, the authority and even security of the Company were by no means complete. The managers proceeded to show, that this pretext was false; and for this purpose produced a document to prove, that when a different view of the subject favoured the purpose of Mr. Hastings, he made affirmations of a very different sort. He then affirmed, that the Company had already taken from the Nabob every particle of independent power; and that the anticipation of danger from such a quarter, by any possible combination of circumstances, was altogether absurd. “No situation of our affairs,” he said, “could enable the Nabob, or any person connected with him, to avail himself, by any immediate or sudden act, of the slender means which he has left to infringe our power, or enlarge his own. He has neither a military force—authority in the country—foreign connextion—nor a treasury.”1

Having given such evidence, that the pretexts onBOOK VI. Chap. 2. 1789. which Mr. Hastings rejected other parties were false, the managers proceeded to give evidence that the pretexts were equally false, on which he made choice of Munny Begum. The first was, that it was inexpedient to leave in existence the office of Naib Subah. The second was, that the annual charge of three lacs of rupees, the salary of that officer, was an expense of which the East India Company would not approve. The third was, that the existence of such an officer lessened the consequence of the Company’s own administration. The fourth was, that it was expedient to divide the duties among three officers, one, the guardian of the person and household of the Nabob; a second, the steward of that household, under the title of Duan; a third, the superintendant of judicature and police, under title of Roy Royan of the Khalsa. And a fifth was, that Munny Begum, as widow of Meer Jaffier, had a peculiar fitness for the office of guardian of the Nabob. To show that the pretext of abolishing the office of Naib Subah was false, the managers brought evidence to prove that it still existed; as all the powers of it were vested in Munny Begum, other persons being nothing but agents and subordinates dependant upon her will: “You,” said the Board, “are undoubtedly the mistress, to confirm, dismiss, and appoint whomsoever you shall think fit in the service and offices of the Nizamut; they are accountable to you alone for their conduct, and no one shall interfere between you and them.” That the pretext relating to the expense was false, was proved by the fact, that no diminution was ever attempted, but the whole three lacs were given to Munny Begum and her subordinates. The pretext that the dignity of any person administering what Mr. Hastings himself called the slender BOOK VI. Chap. 2. 1789.means of the Nabob, could lessen the consequence of the Company’s government, upon which both he and the Nabob depended absolutely for all that they possessed, is so evidently false, as to be ridiculous. That the pretext about dividing the duties was false appeared from the fact, that they were not divided; any further than by name; Munny Begum being the absolute mistress of all the instruments, just as if she had been appointed the Naib Subah in title. And that it was a false pretext to rest the fitness of Munny Begum upon her being the widow of Meer Jaffier, was proved by the fact that she was not his widow, that she had never been his wife, but his concubine, and that her offspring had been treated as spurious by the English government.1

Having thus shown, or endeavoured to show that the choice of Munny Begum to fill the office, or supply the place of Naib Subah, could not be accounted for upon any other supposition than that of pecuniary corruption, the managers next proceeded to prove that Mr. Hastings, as well as his creatures, did actually receive large sums of money for that appointment. And at this point began the great efforts which were made on the part of the defendant to exclude evidence; and so successfully made, that nothing more than a vigilant application of the rules which his lawyers laid down, and the lords confirmed, is necessary, in the case of a ruler who has a little cunning, to render conviction of delinquency all but impossible.

To one of the preliminary points, the managers wished to adduce the evidence of a letter of Mr. Hastings. The original letter, however, was not to be found. But there was a copy of it in the book at the India House, into which all letters were transcribed;BOOK VI. Chap. 2. 1789. and there was a printed copy of it in the report of the Secret Committee of the House of Commons. The counsel for the defendant objected; and the Lords determined, that before any of these copies could be received as evidence, the managers must prove three points; first, that the original letter had existed; secondly, that now it could not be found; thirdly, that the alleged copy was exact. All these points might have been determined immediately, had not one of the darling rules of the lawyers, for the exclusion of evidence, shut up, on this occasion, the source from which perfect evidence might have been immediately derived. Had the real discovery of truth been the direct and prevailing object; there, stood the supposed author of the letter; he might have been asked, upon his oath, whether he did write such a letter or not; and the question would have been decided at once. Oh but! say the lawyers, this would have been to make him criminate himself. Quite the contrary, provided he was innocent; if guilty, the lawyers will not say, that his guilt ought not to be proved. Upon the strength, however, of the lawyers’ rules, this instrument for the discrimination of guilt from innocence was not to be used.

Whereas Mr. Hastings had the express commands of the Court of Directors, dated in August, 1771, to make it appear in the Nabob’s accounts for what particular purpose every disbursement was made, and yet nothing was exhibited in those accounts but general statements of so much expended, while it was ascertained that Mr. Hastings had given no orders agreeably to the commands of the Directors, and that inaccuracies prevailed in the statements that were given; a strong presumption was thereby BOOK VI. Chap. 2. 1789.created against the Governor-General, because he had thus provided a grand channel through which the current of presents might flow into his pockets without the necessity of an entry, sufficient to detect them, in any books of account. After the statement of this presumption, the managers proceeded to the exhibition of direct testimony, that bribes were received by Mr. Hastings, for the appointment both of Munny Begum and of her subordinates. They began with the information received from the Rajah Nuncomar, that Mr. Hastings had accepted a present of two lacs and a half from Munny Begum for appointing her Regent during the minority of the Nabob; and a present of one lac from himself for appointing his son, the Rajah Gourdass, steward under Munny Begum. The documents produced were the Minutes of Consultation of the President and Council at Calcutta. The reading was not interrupted till it came to the examination of the Rajah, before the Council, on the subject of the charges which he had preferred. The learned counsel represented that it ought not to be read, First, because it was not upon oath; Secondly, because it was taken in the absence of Mr. Hastings; Thirdly, because it was not before a competent jurisdiction; Fourthly, because the Rajah was afterwards convicted of a forgery, committed before the date of the examination. On the objection as to the want of an oath, it was shown to have been the practice of Mr. Hastings to avail himself of the allegation that an oath was not a requisite to the testimony of a noble Hindu, of whose religion it was a breach. Besides, it can, on reflection, be regarded by no body, as adding any thing considerable; and may perhaps, be, with justice, regarded as adding nothing at all, to the securities for truth, to compel a man, who otherwise would certainly affirm a lie to the judge, to perform a short religious ceremonyBOOK VI. Chap. 2. 1789. beforehand. In the case of the man who otherwise would not tell a lie to the judge, the oath evidently is of no use whatever. Further; testimony admits of degrees; one testimony has so many of the securities for truth, another has so many less, another fewer still; the value of each is estimated by the judge, and even the lowest is reckoned for what it is worth. So, when the oath is wanting to an article of testimony, it is only one of the securities that is wanting; and the testimony may be worthy of the highest possible credit on other accounts. As to the objection drawn from the absence of Mr. Hastings, it was treated as not merely unreasonable, but impudent. Why was Mr. Hastings absent? Because he determined not to be present: and if a man is thus allowed to fabricate by his own act an objection to evidence, and then to employ it, he is above the law. The objection to the competence of the jurisdiction was founded upon a disallowed assumption, that the Council, after it met, was dissolved by the simple fiat of the President, though the majority, whose vote was binding, determined it was not. As to the conviction of Nuncomar, the managers declared that they were only restrained by the authority of those whom they represented from asserting that it was a conviction brought about for the very purpose to which it was now applied, the suppression of evidence against Mr. Hastings. I shall add, that the rule upon which the objection was founded, is pregnant with the same sort of absurdity and injustice, with the other rules of exclusion, examples of which we have already beheld. If a man has committed a crime, ought he therefore to be endowed with the privilege of conferring impunity on every crime committed in his presence, provided no body sees the action but himself? BOOK VI. Chap. 2. 1789.The evidence of the greatest criminal is of so much importance, that pardon is commonly granted to any one of a combination who gives evidence against the rest.

Upon the whole, with regard to this document, it is most obvious to remark, that it is contrary to the nature of things to suppose that evil should have arisen from hearing it read; because every observation which could tend to show how little on the one side, or much on the other, was its value as an article of evidence, it was the business of the parties to present; and this the Lords were surely as competent to determine as the still more important questions which it behoved them to decide. When the judge has heard the information which is tendered to him, he can ascertain whether it does or does not contain any of the matter of proof, and if any, in what precise quantity, little or great; When of the evidence tendered to him there is any portion which he has not heard, he can determine nothing about it; and may possibly have lost, rejected, and destroyed that very information on which the power of righteous judgment depended.

Another observation which might have been urged with irresistible force of reason was, that the propriety of receiving such evidence was already weighed and determined by the Legislature, which, in constituting a new Court of Judicature for the trial of offences committed in India, had enacted, that all documents, of the nature of that which was now tendered in evidence, should be received as evidence. The assent of the Lords was included in every act of the Legislature; and that very assembly, therefore, which had already decreed, in its legislative capacity, that such evidence was useful, now, in its judicial capacity, decreed that it was the reverse.

For the purpose for which the managers nowBOOK VI. Chap. 2. 1789. adduced the examination of Nuncomar, it was not necessary they said to insist upon the truth of the testimony left behind him by that unfortunate man. They meant to exhibit the behaviour which Mr. Hastings had manifested, when accusations of such a nature were preferred against him; and by the relation of the behaviour to the charge manifest the probability of guilt. The demeanour of a criminal was circumstantial evidence of his crime.

If the examination was to be read for the sake alone of the circumstantial evidence afforded by the demeanour of Mr. Hastings, not for the purpose of adducing as evidence the testimony itself, the Counsel expressed a sort of willingness to give way. But the managers refused to bind themselves to any conditions, in limitation of what they claimed as a right. On a suggestion from Lord Kenyon, the Lords adjourned to their own chamber to consult.

On the next day of the trial, the Lords announced, “That it is not competent for the managers for the Commons to produce the examination of Nuncomar in evidence; the said managers not having proved, or even stated any thing as a ground for admitting such evidence, which, if proved, would render the same admissible.” If the reason which precedes be well founded, admissibility in regard to relevant evidence ought never to be a question.

The managers desired leave to withdraw. Upon their return, Mr. Burke declared, it was with equal surprise and concern they had heard the determination of their Lordships: It was a determination which exceedingly increased the difficulty of bringing criminality to conviction: To the Lords, however, belonged the power of determining: It remained for the managers to submit.

The Lord Chancellor replied, that what was said or done by Mr. Hastings was evidence against him; not what was said or done by other persons; for then calumny might stand as evidence of guilt. Something said or done by Mr. Hastings was therefore necessary to render this examination admissible evidence.

Mr. Fox rejected this decision. Forbearing to do, was often guilt, or evidence of guilt, as well as doing. There are circumstances in which, if chargesBOOK VI. Chap. 2. 1789. are made against a man, and instead of promoting he does all in his power to prevent inquiry, he gives evidence, and satisfactory evidence of his guilt. This was the evidence which the managers desired to present to their Lordships, and which their Lordships were so unwilling to receive, If this kind of evidence were rejected, Mr. Burke would give joy to all East Indian delinquents. “Plunder on. The laws intended to restrain you are mere scarecrows. Accumulate wealth by any means, however illegal, profligate, infamous. You are sure of impunity; for the natives of India are by their religion debarred from appearing against you out of their own country, and circumstantial evidence will not be received.” If the new principle were established, that acts of omission were not evidence, Mr. Fox, observed, that Indian delinquents were rendered secure. They would take no notice of any charges preferred against them; and thereby render inadmissible the only evidence by which guilt could be proved.

The managers, therefore, proposed to read the whole of the consultation of the 20th of March, including that of the 13th, in order to show the demeanour of Mr. Hastings. Then the House adjourned to the chamber of parliament. Next day the resolution of the Lords was announced, “That the consultation of the 13th of March, 1775, cannot now be read.” Mr. Burke said that how great soever the pain with which he heard the resolution, he was consoled by the use of the word now; which left him room to hope, that the evidence in question might be admitted another time.

As Cantoo Baboo, the Banyan of Mr. Hastings, when summoned by the Council to give evidence on the subject of the charges of Nuncomar, was ordered BOOK VI. Chap. 2. 1789.by Mr. Hastings not to attend, the managers affirmed that this was something done by Mr. Hastings; and that the condition prescribed by the Chancellor was therefore fulfilled. The Lord Chancellor asked what the Council for Mr. Hastings had to offer against this plea. Mr. Law said, they possessed their Lordships’ decision for excluding this evidence, and claimed the benefit of it. The managers conjured the Lords to reflect, that in the sort of cases before them to adhere to the rules of evidence upheld by English lawyers, was to let loose rapine and spoil upon the subjects of government. The managers were then asked, “if they would state the whole of the circumstances upon which they meant to rely, as a ground to entitle them to read the proceedings of the 13th of March, 1775.” The managers desired leave to withdraw. Upon their return they expressed their regret, at not being able to comply with the request of the Lords. In the course of the trial various circumstances might arise, which did not at present occur to their minds. At present they held it enough to adduce one ground which to themselves appeared satisfactory, and upon this they craved the judgment of the Court. The Lords adjourned.

At this point, the Lords demanded to be enlightened, or kept in countenance, by the sages of the law. The following question was referred to the twelve judges. “Whether it be competent for the managers to produce an examination without oath by the rest of the Council, in the absence of Mr. Hastings the Governor, charging him 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 demeanour thereupon; it being alleged by the managers for the Commons, that he took no steps to clear himself, inBOOK VI. Chap. 2. 1789. 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.” To this the judges returned for answer, “That it is not competent for the managers to produce an examination, without oath by the rest of the Councillors, in the absence of Mr. Hastings the Governor, charging him 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 misdemeanour thereupon.” It being carried in the affirmative that the Lords do agree to this opinion, the Court was resumed and the managers were informed, “That the examination of Nuncomar, and the rest of the proceedings of the Councillors, on the 13th of March, 1775, after Mr. Hastings left the Council, ought not to be read.”

The managers began now to complain bitterly, that the resolutions of the Lords were pronounced, without the accompaniment of the reasons on which these resolutions were founded. The managers affirmed that they were thus left completely in the dark, and embarrassed in all their proceedings. This was a point of the highest importance, and it is to be regarded as one of the most characteristic parts of the exhibition then made of itself, by the tribunal before which Mr. Hastings was tried. To issue decisions, without presenting the reasons, is to act the part not of a judge, but of a despot. The mandate of a despot rests on his will. The decision of a judge is founded on reasons, or it deserves any thing rather than the name. But if the decision of the judge is founded on reasons, it is of infinite importance that they should not be confined to his own breast. In the BOOK VI. Chap. 2. 1789.first place, the necessity of stating reasons is one of the strongest securities against all the causes of bad decision, the ignorance of the judge, the negligence of the judge, and the corruption of the judge; against the ignorance of the judge, by making it visible and ridiculous; against the negligence and corruption of the judge, by making him know that he himself must be the indicator of his own offences, the herald as well as author of his own shame. This is one, but not the only benefit derived from imposing upon judges the necessity of giving the reasons upon which their decisions are grounded. The public do not enjoy the advantages of security, unless they have what is called the sense of security, or the belief that they are secure. Unless the administration of justice yield the sense of security, it fails of accomplishing one of the most important of its ends. But of all possible means to convey this sense of security one of the most potent undoubtedly is, to make known to the people invariably the reasons upon which the decisions of the judges are founded. It is this alone with which the people can, or ought to be satisfied. How can they know, that a decision is just, when they are ignorant of its grounds? It is to be considered as circumstantial evidence (and evidence which in general ought to be held conclusive), when reasons are not given for a judicial decision, that it is for one of two causes; either, 1. because no good reasons can be given; or 2. in order to favour a practice according to which decisions, for which no good reason can be given, may be pronounced at any time.

It is therefore a fundamental axiom in the science of jurisprudence, that without reasons strictly accompanying every judicial decision, the duty of the judge is most imperfectly performed, and good judicature altogether impossible.

With regard to the resolution itself, Mr. BurkeBOOK VI. Chap. 2. 1789. proclaimed, in the face of the Court by which it was formed, “That it held out to future governors of Bengal the most certain and unbounded impunity. Peculation in India would be no longer practised, as it used to be, with caution, and with secrecy. It would in future stalk abroad in noon-day, and act without disguise; because after such a decision, as had just been made by their Lordships, there was no possibility of bringing into a court the proofs of peculation.”

The fact is of the highest importance. The rules of evidence, deplorably adopted by the Lords, are so many instruments of protection to the crimes of public men in public places; that is, crimes, from the very nature of the case, more extensively mischievous than all others; and crimes of which the existence can seldom be legally ascertained except by the very sort of evidence, which the Court, set up in this country to punish them, makes rules to exclude.

Beside the examination of the Rajah Nuncomar, there was recorded in the consultation of the 13th of March, a letter from Munny Begum, which stood, according to the managers, upon grounds of its own. Its authenticity was fully proved by Sir John D’Oyley, Mr. Auriol, and a Persian Moonshee who had translated it, and after having examined the seal, pronounced it to be the seal of Munny Begum. This person, whose character and rank Mr. Hastings placed very high, had stated in this letter her having given a large sum of money to Mr. Hastings for appointing her regent during the minority of the Nabob. The evidence of this letter the managers proposed to adduce. The counsel for the prisoner objected. The ground of the objection was, that the letter was recorded in those minutes of the consultation of the BOOK VI. Chap. 2. 1789.13th of March, which the Court had refused to admit. The House sustained the objection, and forbade the letter to be read.1

The next part of the proceedings is truly remarkable. “The managers desired that Philip Francis, Esq. might be called in, to prove that a letter from Munny Begum to the Rajah Nuncomar, charging Mr. Hastings with a receipt of three and a half lacs of rupees, was delivered into the Council on the 13th of March, 1775, and that Mr. Hastings knew the Begum had written such letter.” The witness was not allowed to speak to the consultation of that day, or to the letter. The reason was, because the proceedings existed in writing, the letter existed in writing; and that which itself existed in writing was better evidence than parole testimony to its contents. The witness was not allowed to speak, because there existed a writing that was better evidence; and that writing which was better evidence the Court had determined they would not receive! The witness was not allowed to speak, on the pretext that something else was better evidence, while the Court itself had determined that the said something else was not evidence at all!

When the accounts of Munny Begum, in her quality of Regent, were called for by the Board of Council, after the arrival of Clavering, Monson, and Francis, a large sum appeared, of the mode of disposing of which no explanation was given. A commission, at the head of which was placed Mr. Goring, was sent to Moorshedabad, to inquire. Upon this investigation came out the declarations of Munny Begum, that the sum not accounted for had, at the time of vesting her with the Regency, been given to Mr.BOOK VI. Chap. 2. 1789. Hastings, and his attendants. Certain papers, stating the receipt, by Mr. Hastings, of one lac and a half of rupees, papers transmitted by Mr. Goring to the Board at Calcutta, received by them, recorded without any objection on the part of Mr. Hastings, and transmitted by him, still without objection, to the Court of Directors, it was proposed, by the managers, to read. The council for Mr. Hastings insisted, that these papers were not direct evidence, as wanting the requisite securities of oath and authentication; and not circumstantial evidence, because no act of Mr. Hastings, as required by the Court, connected them with himself. The Lords determined that the papers ought not to be read. And yet that there was matter of evidence in papers so delivered, and that there might be in the demeanour of the person whom they regarded, it is impossible to deny. That the papers did contain the declaration of Munny Begum, was susceptible of the completest proof. That her declaration not judicially given, and not subject to cross examination, was of much less value than if it had received these securities, is no less true; but still, as far as it was not invalidated by other circumstances, it was of some value, and ought to have been counted for what it was worth. And if Mr. Hastings, instead of taking the course which was natural to an innocent man, took that which a consciousness of guilt would naturally prescribe, this demeanour would be circumstantial evidence against himself. Instead of permitting light to come in from these two sources, light of which the value, whatever it was, would appear, when it was seen and examined, the Lords resolved to shut it out, without permitting it to be seen at all.

The managers next offered to produce, in evidence BOOK VI. Chap. 2. 1789.of the same facts, an original Persian letter, under the hand and seal of the Munny Begum, signed by the Nabob, and transmitted by Mr. Goring to the Board. And as an act of demeanour, fulfilling the condition required by the Lords to constitute any document a link in a chain of circumstantial evidence, they stated that Mr. Hastings, after Munny Begum was freed from all influence but his own, never attempted to invalidate the testimony she had given.1 The House determined that the letter should not be read.

The Managers next proposed to examine Mr. Goring, in order to prove that Munny Begum delivered to him a paper, in the Persian language, under her own hand, stating, that Mr. Hastings had received from her a lac and a half of rupees, under colour of money for his entertainment. The counsel for the defendant objected to evidence of any consultation with Munny Begum, Mr. Hastings himself not being present. They objected also to the production of any paper, which had not been delivered in the presence of Mr. Hastings, and the contents of it read to him. The Managers offered the paper as an original instrument, which possessed all the securities for truth required by the Indian laws, being under the seal of the Begum, and attested by the Nabob, while it was contrary to the manners of the country for a woman of rank to appear in public, or take an oath. The House decided that the paper could not, upon these grounds, be admitted as evidence against the defendant.

As Major Scott, agent of Mr. Hastings, with full,BOOK VI. Chap. 2. 1789. and almost unlimited powers, had delivered to the Select Committee of the House of Commons, a translation of a letter from Munny Begum to Mr. Hastings, in which she affirmed the delivery to him of one lac and a half of rupees, the managers contended that this was a perfect acknowledgment of the letter on the part of Mr. Hastings; and that, therefore, the letter ought to be read. The matter was pressed by the Managers in every possible direction; and every expedient which they could imagine for opening a way to its reception was tried, but in vain. The lawers for the defendant, burying in silence a rule which on another occasion they would have strained their lungs to proclaim, Qui facit per alium facit per se, insisted that what is done for a man by his agent, is not done by himself; and that the recognition of a piece of evidence by Major Scott, was not recognition by Mr. Hastings. After some days of contention, the Lords retired to their chamber to deliberate; and, on the next day of the Court, came out, in the usual oracular style, the response, “That the Persian paper, purporting to be a letter from the Munny Begum, and the translation of the same, offered in evidence by the managers for the House of Commons, ought not to be read.”

Beside the absurdity already disclosed, of refusing to receive an article of evidence, because it is not so strong as it would have been, had it possessed more of the causes of strength; while the interests of truth require that the exact value of it should be ascertained, and that it should not be thrown away, but counted for what it is worth; it is obvious to common sense that the question agitated on this occasion so long and vehemently before the Court, might have been settled in one instant, by barely BOOK VI. Chap. 2. 1789.asking Mr. Hastings, if he acknowledged the writing as a letter to himself from Munny Begum.

The vulgar notion, that a man should not be required to give evidence which may operate against himself, is then only rational, when the law is so bad, that it really ought not to be executed; and when humanity approves of every subterfuge by which men may escape from its detestable fangs. That this was once the case with the law of England, as it is the case with the laws of all countries, in times of ignorance, and times of despotism, is undoubtedly true; and then it was, that the vulgar notion, and the rule founded upon it, received their birth. In times when the law was so bad, and the King and other great men so powerful, that they were able on most occasions to use the law as a commodious instrument, for executing upon individuals the dictates of their vengeance, their jealousy, their avarice, or their caprice, that great instrument for defeating the law, namely, the rule, that a man shall not be compelled to give evidence against himself, had often a very obvious, though a temporary, and limited utility. Like most other matters of law it obtained its existence more immediately from the interests of the great men. In times of rudeness, which are times of turbulence, contests are frequent for the crown; and the great men are ranged on different sides. If it happens to them sometimes to be on the winning side; it is equally incident to them to be on the losing. When that happens, the law will be employed to destroy them. And as they live in such a state of things that all foresee they may very probably stand in this predicament themselves, they all eagerly concur in establishing the credit of a rule that shall render it very difficult for the law to convict them; in other words shall afford them many chances to escape. The moments, however, at which the law becomes good, and no man has power toBOOK VI. Chap. 2. 1789. wrest it iniquitously to his own purposes, the case is altered. The moment the law becomes such, that it really ought to be executed, that it is good for the community it should be exactly executed, that it cannot without mischief to the community, in one instance, be defeated of its execution, then every subterfuge by which he who has infringed the law may escape, is an evil; then every thing which guards the truth from discovery, is a cause of mischief; and, surely, it is one of the most effectual expedients for guarding the truth from discovery; surely it is one of the most effectual of all the subterfuges by which he who has infringed the law may escape its penalties, if he who knows the most of the circumstances shall be protected in concealing what he knows.

Mr. Burke complained of the inextricable perplexity, in which the managers were involved by these naked decisions. If reasons were given, they would know, that wherever the same reasons applied, the same decision would be pronounced. Issued without any reason, every decision stood for itself alone; was confined to an individual not extended to a species; and furnished no rule for any thing else. They doubted not but the resolution of the House was founded upon technical grounds. But “in the case on which their Lordships had last decided, the managers had offered in evidence a paper, proved to have been written by Munny Begum, and transmitted to Mr. Hastings—they offered also a translation of that paper, delivered to the Committee of the House of Commons by the very agent of Mr. Hastings—they proved that these papers had been sent to the prisoner in the Eleventh printed Report of that Committee, and that when he drew up his defence he must have had them before him:— BOOK VI. Chap. 2. 1789.That papers so substantiated, should have been rejected by their Lordships, must be a matter of astonishment to all the thinking part of mankind, who should happen to be unacquainted with the technical grounds, on which their Lordships had resolved that these papers were not to be received.”1

During these contentions two incidents occurred, the importance of which requires, that they should here be presented to view. It was given out, as a dictum, by Mr. Law, the defendant’s counsel, That every accusation brought against a man and not proved, was a calumny, and slander. “Mr. Burke,” says the historian of the trial, “replied, with much indignation, that he was astonished the learned Gentleman dared to apply such epithets to charges brought by the Commons of Great Britain, whether they could or could not be proved by legal evidence. It wasBOOK VI. Chap. 2. 1789. very well known that many facts could be proved to the satisfaction of every conscientious man, by evidence which, though in its own nature good and convincing, would not be admitted in a court of law. It would be strange, indeed, if an accusation should be said to be slanderous and calumnious, merely because certain rules of law declared that evidence, not to be admissible in law, which would carry conviction to the breast of every man who read it.”1 But this observation, pointed as it was in the particular case, was too much limited to that particular case; as was, indeed, the misfortune of most of the instruments with which Mr. Burke endeavoured to parry the weapons of the lawyers. The dictum of the lawyer is universally mischievous, and also contemptible; and ought to have been proved to be so: the efficacy of it, as far as it is allowed to have any, is to provide impunity for crimes. When is it known that an accusation can be proved? Never, till the cause is tried before the judge. If an accusation must, therefore, never be brought (assuredly a calumny ought never to be brought), unless it is known that it can be proved, an accusation ought never to be preferred at all. There ought to be no accusation of guilt; and of course, no trial; and no punishment! If, in order to escape from these atrocious consequences, the lawyer will not say that it is necessary a man should know his accusation can be proved, but declare it is enough provided he believes that it can be proved, the wretched dictum is wholly given up. The fact is, that presumption, and often a very slight presumption, may not only justify, but urgently demand BOOK VI. Chap. 2. 1789.accusation. According to the vile doctrine of the lawyer, every indictment found by the grand jury, upon which a verdict of guilty is not given at the trial, is a calumny; and yet the grand jury proceed so purely upon presumption, and are so precluded from the possibility of knowing whether the accusation can be proved, that they can hear evidence only on one of the sides.

The other incident is closely connected with the foregoing. Mr. Law, whose native audacity had, by the support which he found he received, and the indignities put upon the accusation, been gradually rising to a tone of great disrespect to the managers, had now broken out into such language, as the House thought it necessary to rebuke for indecency. Mr. Law defended himself by saying, he did not mean to apply the terms slander or calumny to any proceeding of the House of Commons; but he had the authority of that House for declaring, that the Honourable Manager had used slanderous and calumnious expressions, not authorized by them. “Mr. Fox,” says the historian of the trial, “took fire at this expression. He said it was indecent and highly irregular, in an advocate, to allude to what had taken place within the walls of the House of Commons: that the learned counsel had done worse, he had misrepresented that to which he had presumed to allude: he had charged the whole body of the Commons with having sent up slanders in the shape of charges: and he had pronounced the deputies of the Commons calumniators, merely because they offered in evidence those very documents, on the authority of which the Commons had pronounced the charges to be well-founded, and sent them as articles of impeachment to the Lords.” Mr. Law defended himself acutely from the impropriety of alluding to any proceeding in the House ofBOOK VI. Chap. 2. 1789. Commons, by affirming that he alluded only to what the Honourable Manager himself had told them of the proceedings of that House. Mr. Fox said, that this was a new misrepresentation; their Lordships had not been told that any thing which had fallen from the managers had been designated by the House of Commons, slanderous or calumnious; nor any thing which could be tortured into such a meaning.

Mr. Fox would not proceed in the trial, until the Lords should give an opinion on this language. If that was refused, he must return to the Commons for fresh instructions.

The words were taken down, read to their author, and recognized. It was proposed that the Lords should withdraw to consider them. But a mode was found of giving satisfaction to the managers without this interruption. The Lord Chancellor, it was agreed, should admonish the learned counsel, That it was contrary to order in the counsel to advert to any thing that had passed in the House of Commons: That it was indecent to apply the terms slander or calumny to any thing that was said by their authority: And that such expressions must not be used.1

The managers next proceeded to prove, that when Mr. Hastings became master of the votes of the Council, he re-appointed Munny Begum, and the Rajah Goordass, to the offices from which the majority of the Council had removed them, after those persons had presented public official accounts charging him with the receipt of three and a half lacs of rupees. This was an act of Mr. Hastings, in relation to these accounts, which, the managers contended, fulfilled the condition required by the Lords for receiving BOOK VI. Chap. 2. 1789.them. The counsel for the defendant produced his objections. The managers answered. The counsel replied. The Lords withdrew to their chamber to deliberate. They asked the opinion of the twelve judges. The judges required a little time. After an intermission of proceedings from the 17th of June to the 24th the Lords met in Westminster Hall, and informed the managers, “That the accounts last offered by them in evidence ought not to be read.”

Before any further proceedings commenced, it was proposed by Lord Portchester, one of the Peers, that certain questions should be referred to the judges. It was according to form, that this business should be transacted, by the Lords, in their chamber of parliament. To this they returned. And at six o’clock in the evening, they sent a message to the Commons, that they had adjourned the further proceedings on the trial for six days. When they met on the 30th in Westminster Hall, no communication of what had passed in their chamber of parliament, was made to the parties. And the managers for the Commons were desired to proceed.

Upon their adjournment, however, on the 24th, the Lords had spent the day in debate; and agreed to proceed with the further consideration of the subject on the 29th. On that day, they went into a committee, “To inquire into the usual method of putting questions to the judges and receiving their answers in judicial proceedings.” A great number of precedents were read. There was a long debate. At last it was determined, “That the proceedings on the trial of Warren Hastings, Esq. had been regular, and conformable to precedent in all trials of a similar nature.”

It had been agreed at an early period of the trial, that of the documents received in evidence only so much as referred strictly to the point in questionBOOK VI. Chap. 2. 1789. should be read; and that they should be printed entire by way of appendix to the minutes. In this way, a letter, of Mr. Goring, reporting the statements made by Munny Begum relative to the money received by Mr. Hastings, had been printed. This report the managers now desired might be read. As printed, by order of the peers, to give information on the subject of the trial, it was already in evidence before them. A long contention ensued. The Lords adjourned twice to deliberate, on two separate points. They at last determined, “That no paper ought to be read merely because it is printed in the appendix; and, therefore, that the letter of Mr. Goring, last offered in evidence, ought not to be read.”

The managers offered the letter again, and urged its acceptance, on two other grounds; First, as part of a consultation which had already been read, and applied to the same subject; Secondly, as rendered evidence by the demeanour of Mr. Hastings, who had requested the Court of Directors to read and consider it. The objections of the counsel were made. The usual reply and rejoinder were heard. The managers were asked, “If the above were the whole of the grounds upon which they put the admissibility of the papers offered: To which they made answer, That they were. The House adjourned to the chamber of parliament.” The next day of the trial the managers were informed, that “the letter ought not to be read.”

The managers after this proceeded to prove, that when Mr. Hastings, as soon as he recovered an ascendancy in the Council, re-established Munny Begum in the regency, the pretext upon which he grounded this proceeding, namely, the will of the Nabob, who had a right to make the appointment, BOOK VI. Chap. 2. 1789.was false, and impostrous; in as much as the Nabob, according to Mr. Hastings himself, according to the Judges of the Supreme Court, and according to the known facts of his situation, had no will; and was nothing but a creature in the hands of Mr. Hastings. They also offered proof, that this proceeding was condemned by the Court of Directors, and that it was injurious to the government, and to the interests of the people. To the evidence tendered for this purpose, but little opposition was raised. And here the case for the managers upon the first part of this article of the impeachment was closed.1

Before proceeding to open the question upon the second part, the Lord Chancellor requested to know to what length of time it appeared to the managers that their proceedings on this branch of the subject would extend. As he received an answer, importing that several days would be requisite, even if no delay was created by the lawyers in objecting to evidence; and as these communications seemed to point to a design of adjourning further progress in the trial, till the beginning of the next session of parliament, Mr. Hastings rose, and made a very humble and pathetic speech, complaining of the hardships of the trial, and earnestly deprecating delay. His life, he said, would not suffice, if this prosecution proceeded at the pace at which it had begun, to see it to an end. He affirmed, but qualifying the assertion carefully, that it might not appear offensive to the Lords, that he would have pleaded Guilty, had he foreseen the space of time which the trial would consume. He could not frame, he said, any specific prayer to their Lordships, nor could he press them to a greater waste of their time, at so advanced a period of the season; but if the managers could specify any such limitedBOOK VI. Chap. 2. 1790. period as their Lordships could devote, to close the impeachment, which he had been informed was to end with this article, he would rather consent to wave all defence, than postpone the decision to another year. The House adjourned to the chamber of parliament, where it was agreed to proceed on the trial on the first Tuesday in the next session of parliament.

On the 16th of February, 1790, the business of the trial now prolonged to the fifty-sixth day, was resumed. What remained of the sixth article of impeachment, and a part of the seventh, were opened by Mr. Anstruther. And on the 18th of February, which was the fifty-seventh day of the trial, evidence began to be heard.

A letter was produced, dated 29th of November, 1780, from Mr. Hastings to the Court of Directors. In this letter the Directors were told, that, so far back as on the 26th of June, Mr. Hastings had made “a very unusual tender,” as he calls it; that is, to defray with his own money the extraordinary expense of sending against the Mahrattas the detachment under Major Carnac. He also, at the same time, gives them to understand that the money, which he had thus expended, was not his own. But, without a word to show to whom, in that case, the money did belong, he only adds, “With this brief apology I shall dismiss the subject.” His language is somewhat strange. This account of this transaction he calls an “anecdote.”—“Something of affinity,” he says, “to this anecdote may appear in the first aspect of another transaction.” Of that transaction too the same letter contains an account. When Bengal was threatened with the detachment of the Berar army, which during the war with the Mahrattas marched into Cuttack, BOOK VI. Chap. 2. 1790.one of the means which Mr. Hastings employed for eluding the danger was, to supply that detachment with money. He now informs the Court of Directors, that he took upon himself the responsibility of sending three lacs of rupees, unknown to his Council. Two-thirds of this sum, he says, he had raised by his own credit; and should charge as a debt due to himself by the Company: the other third he had supplied from the cash in his hands belonging to the Company.

About these several sums, this was all the information which the Governor-General thought fit to give to the Directors on the 29th of November, 1780.

On the 5th of January, 1781, the following notice was communicated by the Governor-General to the Members of the Council, “Honourable Sir, and Sirs, Having had occasion to disburse the sum of three lacs of sicca rupees, on account of secret services, which having been advanced from my own private cash, I request that the same may be repaid to me,” &c.; and on the 9th he received three bonds for the amount.

Of the whole sum it was proved that one third was paid to Mr. Hastings in England.

The next document was a letter from Mr. Hastings to the Secret Committee of the Court of Directors, dated Patna, 20th January, 1782, stating, that he had, when at Chunar, accepted from the Nabob Vizir, a present of ten lacs of rupees, which he requested their permission to appropriate to himself.

Another of his letters to the same Committee, dated 22d May, 1782, gave an account of the sums which he had privately received, and expended in the service of the Company. Excepting the sum from the Nabob Vizir, no information was yet given of the sources whence any part of that money had beenBOOK VI. Chap. 2. 1790. derived. Of the use which was made of the several sums, he says, that the reference which he gives to the several accounts, in which they are credited in the Company’s books, is specification enough. With regard to the sources whence they were derived, the motives for receiving them, and his own modes of dealing with them, he satisfies himself, with the following mysterious and obscure expressions. “Why these sums were taken by me; why they were, except the second” (that applied to the service of Carnac’s detachment) “quietly transferred to the Company’s use; why bonds were taken for the first,” (that sent to the Berar army in Cuttack), “and not for the rest, might, were this matter to be exposed to the view of the public, furnish a variety of conjectures, to which it would be of little use to reply. Were your Honourable Court to question me upon these points, I would answer, that the sums were taken for the Company’s benefit, at times in which the Company very much needed them; that I either chose to conceal the first receipts from public curiosity by receiving bonds for the amount, or possibly acted without any studied design which my memory could at this distance of time verify; and that I did not think it worth my care to observe the same means with the rest.”

The managers proved; that in the letter of the 29th of November, 1780, two thirds of the money sent to the Berar army were stated as the money of the Governor-General himself; that in this of the 22d of May, 1782, the whole is stated as the money of the Company. It may, however, be also observed, that the taking of the bonds, instead of being a transaction to keep the matter secret, was the only thing which could make it public. He received the BOOK VI. Chap. 2. 1790.money from a private source; he gave it to the Berar Rajah privately, and told him the gift was a secret; all this might have been hid from the world for ever, except for the bonds.

Another thing which is very remarkable is, the idea, which the Governor-General seems to have formed, of the strange negligence of the Court of Directors toward the proceedings of their servants; when he could present to them such an account, as this, of such transactions, without expecting their most severe displeasure. Great sums of money, received from secret sources, and instead of any account of such extraordinary and suspicious transactions given to them to whom the fullest account of every transaction was due, a declaration that this was not a matter for public view, and that it would furnish a variety of conjectures if known, make up one of the strangest scenes between a master and servant, that the history of public negligence presents for the instruction of mankind.

The negligence, which the Governor-General here imputes to himself, the crime of acting in such affairs with so disgraceful a measure of inattention, that he himself knew not the motive by which he was guided, ought alone, if true, to have condemned him in the minds of vigilant employers, and proved his total inaptitude for the trust which was placed in his hands; if not true, conclusions are suggested of a different sort.

The above-mentioned account of the appropriation to the service of the Company of certain sums privately received, though dated on the 22d of May, 1782, was not sent from Calcutta on the 16th of December. By this time, Mr. Hastings had received accounts of the inquiries instituted, and even the resolutions passed, with respect to his conduct, by the House of Commons in England. To escape theBOOK VI. Chap. 2. 1790. appearance of having been impelled to produce this account by the terror of investigation, he got Mr. Larkins, the Accountant-General, to affix to it his affidavit of the time in which it was written. In his letter of this date he reproaches his employers for rendering necessary, by their want of confidence, this humiliating precaution. Addressing the Secret Committee of the Court of Directors, he says, “If I wanted integrity and honour, the Court of Directors have afforded me but too powerful incentives to suppress the information which I now convey to them through you, and to appropriate to my own use the sums which I have already passed to their credit—by the unworthy, and, pardon me if I add, dangerous reflections which they have passed upon me for the first communication of this kind. And your own experience will suggest to you that there are persons who would profit by such a warning.” He adds, with regard to the sums in question, and the declaration is important, “I could have concealed them, had I had a wrong motive, from yours and the public eye, for ever.” He makes in the same letter another declaration which is worthy of a man conscious of rectitude; “if I appear in any unfavourable light by these transactions, I resign the common, and legal, security of those who commit crimes or errors. I am ready to answer every particular question, that may be put against myself, upon honour, or upon oath.”

There he laid his finger on the material point. There he appealed to an efficient test. Innocence is proved by interrogation, and best proved when the interrogation is most severe. Had Mr. Hastings acted up to this declaration; had he really submitted himself to scrutiny; instead of using, to defend himself from it, every effort which the artifice of lawyers BOOK VI. Chap. 2. 1790.could invent, and every subterfuge which the imperfections of the law could afford, he might have left his rectitude, if real, without a suspicion; whereas now, if his accusers could not prove his guilt, it is still more certain that he has not proved his innocence.

Mr. Hastings, to prove that he never meant to appropriate the money for which he took the bonds, stated in his defence, delivered at the bar of the House of Commons, that a few months after the receipt of the bonds, that is in July, 1781, he indorsed all three payable to the Company, and left them in the hand of the Accountant-General, with express directions to deliver them up. The managers gave evidence to prove that they were not indorsed till the 29th of May, 1782; and not communicated to the Board and cancelled, till the 17th of January, 1785.

The managers next gave in evidence a letter of Mr. Hastings to the Court of Directors, dated the 21st of February, 1784, in which he gave them an account of several sums, which had been expended in their service, but drawn from his own fortune, without having, as yet, been charged to their account. Some of the objects of this expenditure were of the most excellent kind, as the digest and translation of the native laws. Having stated these debts, amounting to a sum of not less than 34,000l. sterling, Mr. Hastings added, that he meant to pay himself by a sum of money which had privately come into his hands. Of the source from whence this money was derived, he afforded, as on former occasions of the sort, no information to his employers whatsoever. He left them absolutely and unceremoniously in the dark.

The managers next presented a passage from Mr. Hastings’s defence, delivered at the bar of the House of Commons, in which the mode of receiving thisBOOK VI. Chap. 2. 1790. money is declared in the following words. “In the years 1783, when I was actually in want of a sum of money for my private expenses, owing to the Company not having at that time sufficient cash in their treasury to pay my salary, I borrowed three lacs of rupees of Rajah Nobkissen, an inhabitant of Calcutta, whom I desired to call upon me, with a bond properly filled up—he did so; but, at the same time I was going to execute it, he entreated, I would rather accept the money than execute the bond: I neither accepted the offer nor refused it; and my determination upon it remained suspended between the alternative of keeping the money as a loan to be repaid, and of taking it and applying it, as I had done other sums, to the Company’s use; and there the matter rested till I undertook my journey to Lucknow, when I determined to accept the money for the Company’s use. And these were my motives: Having made disbursements from my own cash, which I had hitherto omitted to enter into my public accounts, I resolved to reimburse myself, in a mode most suitable to the situation of the Company’s affairs, by charging these disbursements in my Durbar accounts of the present year, and crediting them by a sum privately received, which was this of Nobkissen’s.”

A letter was then read, from the Court of Directors to the Governor-General and Council at Fort William, dated 16th March, 1784, in which they require an account (none had as yet been given) of the presents which the Governor-General had confessed. “Although it is not,” they say, “our intention to express any doubt of the integrity of our Governor-General, on the contrary, after having received the presents, we cannot avoid expressing our approbation of his conduct, in bringing them to the BOOK VI. Chap. 2. 1790.credit of the Company: yet, we must confess, the statement of these transactions appears to us in many parts so unintelligible, that we feel ourselves under the necessity of calling on the Governor-General for an explanation, agreeable to his promise, voluntarily made to us. We therefore desire to be informed—of the different periods when each sum was received—and what were the Governor-General’s motives for withholding the several receipts from the knowledge of the Council—or of the Court of Directors—and what were his reasons for taking bonds for part of these sums—and for paying other sums into the treasury as deposits on his own account.”

Mr. Hastings was at Lucknow when this letter was received. He returned to Calcutta on the 5th of November, 1784; and departed for England in the month of February, 1785. During all this time no answer was returned. When in England, he was given to understand that an explanation was still required; and he addressed a letter to the Chairman, dated Cheltenham, 11th July, 1785. He first apologizes, for delay, by his absence from Calcutta, and the pressure of business at the close of his government. He can give no further account, he says, of dates, than he has given, though possibly Mr. Larkins could give more. The necessities of the government, he says, were at that time so great, that “he eagerly seized every allowable means of relief;” but partly thought it unnecessary to record these secret aids, partly thought it might be ostentatious, partly that it would excite the jealousy of his colleagues. He made the sums be carried directly to the treasury, and allowed them not to pass through his own hands, to avoid the suspicion of receiving presents for his own use. Two of the sums were entered as loans. One was entered as a deposit, namely, that expended on Carnac’s detachment, because the transaction didBOOK VI. Chap. 2. 1790. not require concealment, having been already avowed. He makes a curious declaration, that though destined for the public service, and never meant for his own use, “it certainly was his original design to conceal the receipt of all the sums, except that one, even from the knowledge of the Court of Directors.” This relates to all the sums, except that from the Nabob Vizir. With respect to that he says, “When fortune threw in my way a sum, of a magnitude which could not be concealed, and the peculiar delicacy of my situation, at the time in which I received it, made me more circumspect of appearances, I chose to apprise my employers of it, and to add to the account all the former appropriations of the same kind.”

In this, if something, be it what it may, be alleged, as a motive for concealment from the Council, nothing whatsoever is even hinted at as a motive for concealment from the Court of Directors. This, the principal question, was still completely evaded, and left without a shadow of an answer. One of the allegations is altogether unintelligible, that it would have excited suspicion had the sums been carried to his own house, but no suspicion when, as his money, not the Company’s, it was lodged in their treasury either as a deposit or a loan. If the money was represented as his, the question, how he came by it, was the same in either case. With respect to these most suspicious transactions, two important points of information were still obstinately withheld; namely, from what parties the sums were obtained, and why the transactions were concealed from those from whom it was a crime in their servants, of the deepest die, to conceal any thing which affected the trust committed to their charge.

From this, the managers proceeded to a different head of evidence; namely, the changes which Mr. Hastings had introduced in the mode of collecting the revenues. The object was to show that these changes increased the facilities of peculation, and laid open a wide door for the corrupt receipt of money; that such facilities had not been neglected; and that money had been corruptly received. The great points to which the managers attached their inferences of guilt were three; the appointment of the Aumeens, with inquisitorial powers for the purpose of the inquiry into the taxable means of the country, at the termination of the five years’ settlement in 1777; the abolition of the Provincial Councils and appointment of the Committee of Revenue; and the receipt of presents from the farmers of the revenue in Nuddea Dinagepore, and Bahar.

The managers began with the Provincial Councils. It was proved by a variety of documents, that the Provincial Councils had received the strongest approbation of the Court of Directors. It was proved that they had repeatedly received the strongest testimonies of approbation from Mr. Hastings himself. Yet, on the 9th of February, 1781, Mr. Hastings abolished them; and formed his Committee of Revenue.

It was next proved, that Gunga Govind Sing wasBOOK VI. Chap. 2. 1790. appointed Duan to this Committee; and that high and important powers were attached to his office.

To prove that the character of Gunga Govind Sing was bad, a consultation of the Council in 1775 was read. On that occasion he was, for a fraud, dismissed from his office of Naib Duan to the Provincial Council of Calcutta; Mr. Francis and Mr. Monson declaring that from general information they held him to be a man of infamous character; the Governor-General asserting that he had many enemies, and not one advocate, but that all this was general calumny, no specific crime being laid to his charge. Lastly, the managers offered evidence to prove that Gunga Govind Sing, at the time of this appointment, was a public defaulter, by a large balance, of which he would render no account.

They now passed from the abolition of the Provincial Councils, to the present from the revenue farmer of Patna. In the sixth article of charge, Mr. Hastings was accused of having taken from a native of the name of Kelleram, as a consideration for letting to him certain lands in Bahar, a sum of money amounting to four lacs of rupees. It was inferred that this was a corrupt appointment, as well from other circumstances, as from this, That Kelleram was notoriously a person of infamous character, and, in all other respects, unqualified for the office.

The managers proposed to begin with the proof of this unfitness. The Counsel for the defendant objected; because unfitness was not a charge in the impeachment. After hearing both parties, the Lords adjourned. Finally, they resolved, “That the managers for the Commons be not admitted to give evidence of the untitness of Kelleram for the appointment of being a renter of certain lands in the province BOOK VI. Chap. 2. 1790.of Bahar; the fact of such unfitness not being charged in the impeachment.”

The point is of importance. It is only when conformable to reason, that the authority of lords, or of any one else, is the proper object of respect.

Whether the appointment of a particular man to a particular office was corrupt, or not corrupt, was the question to be tried. If circumstantial evidence is good in any case, it is good in this. But surely, it will not be denied, that the fitness or unfitness of the person to the office, is one among the circumstances from which the goodness or badness of the motives which led to his appointment may be inferred. Accordingly, the counsel for the defendant did not deny that the unfitness of Kelleram was proper to be made an article of circumstantial evidence. Not denying that it would be just matter of evidence, if given, they insisted that it should not be given.

Their objection amounted to this, that to prove one fact of delinquency, no other fact importing delinquency shall be given in evidence, unless the evidentiary fact itself is charged as delinquency in the instrument of accusation. Now such is the nature of many crimes, that other crimes are the most common and probable source of circumstantial evidence: At the same time, it may be very inconvenient, or even impossible, to include all these minor crimes in the instrument of accusation appropriated to the principal crime. They may not all be known, till a great part of the evidence has been heard and scrutinized. The tendency of such a rule cannot be mistaken. It adds to the difficulties of proving crimes; it furnishes another instrument, and, as far as it operates, a powerful instrument, for giving protection and impunity to guilt. The objection, that a man cannot be prepared to defend himself against an accusation which has not been preferred, is futile: because the fact isBOOK VI. Chap. 2. 1790. not adduced as the fact for which the man is to be punished, but a fact to prove another fact. Besides, if on this, or any other incident of the trial, he could show cause for receiving time to adduce evidence, or in any other way to prepare himself, for any fresh matter which might arise on the trial, a good system of judicature would provide the best mode of receiving it.

Mr. Burke took the liberty of making remarks. He said the Commons of England had a right to demand that they should not be held to technical niceties. And he complained of the obstruction, which this resolution of the Court would create, in dragging to light the offences of the accused, or even in ascertaining the measure of the crime. “If the managers were to be debarred,” he said, “from giving evidence of corrupt intentions, and of aggravations arising from circumstances, not specifically stated in the charges, it would be impossible for their Lordships to determine the amount of the fine, which ought to be imposed upon the prisoner, if he should be convicted; and their Lordships must, in the end, be embarrassed by their own decision.”

The managers then gave in evidence, that, in July 1780, Mr. Hastings wrote an order to the chief of the Patna Council, to permit Kelleram to go to Calcutta: that it was debated in the Council, whether, “in his present situation,” he ought to be permitted to go in consequence of the Governor-General’s orders: that two out of five members voted against the permission: that Kelleram, on receiving permission, requested a guard of Sepoys for his protection down to Calcutta, which was granted: that proposals were received by Mr. Hastings from Cullian Sing for renting the province of Bahar: that the proposals were accepted: BOOK VI. Chap. 2. 1790.and that Kelleram was appointed deputy, or naib.

The managers for the Commons stated, that they would next give evidence to show that this bargain had been extremely injurious to the interests of the Company, as Kelleram had not made good his engagements.

The Counsel for the defendant objected to this evidence, and a long debate ensued. They took the same ground as before, that this would be evidence to a crime not specified in the charge. The Lords adjourned, and spent the rest of the day in deliberation. On the next day of the trial, the managers were informed, “That it was not competent for them 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.” Yet why should a fact, which was offered only as matter of evidence, be rejected as evidence because it was not offered also as matter of charge? This was to confound the most important distinctions. Assuredly, if the corruption of a bargain can be proved by circumstances, its evil consequences, if such as might easily have been, or could not but be, foreseen, is one of those circumstances, and an important one. This, said the Lords and the lawyers, must not be adduced.

The managers vehemently renewed their complaint, that the resolutions of their Lordships were unaccompanied by the reasons on which they were founded. The judges of other courts, it was said, pursued a different course. The evil consequence on which they principally rested their complaint was, the ignorance in which a decision without a reason left them of what would be decided in other cases.

The managers next gave in evidence, that a rule, withBOOK VI. Chap. 2. 1790. regard to peshcush, or the gratuity offered by a renter upon the renewing of his lease, had been established in 1775; and that a small sum, merely to preserve an old formality, was accurately prescribed, and made permanent. The great sum, taken by Mr. Hastings from Kelleram, was not, therefore, peshcush. Mr. Young, who had been six years a member of the Provincial Council of Patna, said that the lease stood in the name of Cullian Sing; but Kelleram was considered as a partner. Being asked, Whether, if the lands had been let at their full value, it would have been for the interest of Kelleram to give four lacs of rupees as a gratuity upon the bargain, he replied, “I think, in the circumstances in which Kelleram stood, he could not afford it.” He was asked, “In what circumstances did he stand?” The opposing lawyers objected; upon the old ground, that the unfitness of Kelleram was not matter of charge. True, and not proposed to be made. But it was matter of evidence, and, as such, ought to have been received. The managers waved the question.

The same witness proved, that at the time when this bargain was struck between Mr. Hastings and Kelleram, a contract had actually been concluded for the whole province by the Provincial Council, who had let the lands, in the usual proportions, to the Zemindars of the country, and other renters. This legal transaction was therefore violated by the bargain subsequently struck between Mr. Hastings and Kelleram. Within the knowledge of the witness the province had never before been all let to one man.

It was given in evidence that Cullian Sing was Duan of the province; that it was the duty of the Duan to check the collectors, and prevent the oppression of the ryots; that of course this check was BOOK VI. Chap. 2. 1790.annihilated by making the Duan renter; but it was also stated, that Cullian Sing had never, in fact, exercised any of the powers of Duan, being prevented by the Provincial Council as unfit.

The witness was asked, “Whether the withdrawing the Provincial Council, and abolishing the office of Dewan, did not put it in the power of the farmer to commit oppression with greater ease than before?” His answer was, “Doubtless.” He was asked “What impressions the letting of the lands to Kelleram and Cullian Sing made upon the minds of the inhabitants of the country?” Mr. Young answered, “They heard it with terror and dismay.” After the answer was given, Mr. Law objected to the question; it not being within the competence of the witness to speak of any body’s sentiments but his own. To give in evidence the sense of the country was on the other hand affirmed to be an established practice. The Lords returned to their own house. They put a question to the judges. The judges requested time to answer it. And further proceedings on the trial were adjourned for two days. When the court resumed, the managers were informed, “That it was not competent for them to put the following question to the witness on the sixth article of the charge;—What impression the letting of the lands to Kelleram and Cullian Sing made upon the minds of the inhabitants in the province of Bahar.” Yet it will not be denied, that when a man was set over a country with powers to which those of a despot in Europe are but trifling, the impression on the minds of the people might rise to such a height as to be a circumstance of great importance, and indispensably necessary to be taken into the account, in forming a correct and complete conception of the views of him by whom the appointment was made. To refuse to receive such evidence is, therefore, to refuse the meansBOOK VI. Chap. 2. 1790. of forming a complete and correct conception of that on which the most important judicial decisions may turn.

The witness was asked, what effects arose from the appointment of Kelleram? and how he conducted himself as renter of the province? Neither of these questions was allowed.

After this the managers went back to the abolition of the Provincial Councils and the Committee of Revenue. Mr. Young deposed, that Gunga Govind Sing, who was appointed Duan; that is, under the new system, the great executive officer of revenue; was a man of infamous character, in the opinion both of Europeans and natives; that the Board of revenue was in his opinion an institution which gave a new degree of power to the Governor-General; that under that system, mischief could more easily exist and be concealed, than under that of the Provincial Councils; that the people were more open to the oppression of the Duan. When the question was asked, whether it came within his knowledge that more evil, or less evil, existed under the Committee of revenue, than under the Provincial Councils, the right of exclusion was urged afresh. Acts of oppression could not be given, because oppression was not charged in the articles. Be it so; but corruption was charged, and acts of oppression were offered as proof of it. Nor is there any contempt of rationality so great as to deny, that acts of oppression may afford evidence, in proof of corruption. To exclude that evidence, by rule, is to deprive justice of one of the means of disclosing guilt. The managers maintained, that oppression was in reality matter of charge, by the words, “to the great oppression and injury of the said people.” The lawyers contended, that this, like the words, BOOK VI. Chap. 2. 1790.“contrary to the peace of our Lord the King,” was but an inference of law. The managers insisted that the cases were radically different, because an act of murder, felony, treason, was, by its nature, and necessarily, contrary to the King’s peace; the appointment of a Board of Revenue was not by necessity oppression. The oppression was not matter of inference, but matter of proof. The Lords adjourned to deliberate, and consumed in the chamber of parliament the rest of the day. The managers were at last informed, “That it was not competent for them 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.”

The managers then reverted to the bargain of Mr. Hastings with Cullian Sing, and Kelleram. The purport of the questions was to prove that a rumour, a prevalent belief, of the receipt, as a gratuity or present, of a sum of four lacs of rupees, by Mr. Hastings, existed, previous to the time at which he made confession of it to his employers. Many of the questions of the managers were resisted by the Counsel for the defendant, but such questions were put by some of the Peers as elicited proof that the rumour did precede the confession.

By cross-examination it was shown, that the abolition of the Provincial Councils was injurious to the interests of the witness; that Gunga Govind Sing, to whose reputed character he spoke, lived at Calcutta, while he himself resided principally at Patna; that one of the individuals from whom he had heard a bad character of Gunga Govind Sing was his enemy; but that his bad character was a subject of common conversation.

In the course of this examination it came out, though the Counsel for the defendant objected to itBOOK VI. Chap. 2. 1790. as evidence, that Kelleram, at the time of his bargain with Mr. Hastings, was a bankrupt, and a prisoner.

Mr. David Anderson was examined, the president of the Committee of Revenue, and a man selected by Mr. Hastings for the most important employments. It appeared that his office, as president of the Committee, was almost a sinecure, for excepting about three months he was always absent on other employments. He, too, was acquainted with the rumour about the money received from Kelleram, which made him so uneasy about the reputation of Mr. Hastings, that he conversed with him upon the subject, and was told that the money had been accounted for. He understood, that sums were privately received from persons employed in the revenue, which never were entered in the public accounts. He himself was sworn not to receive money privately. The Duan of the Committee of revenue might extort money unduly from the people, without detection, provided the offence was not very general. The question was put, and a most important question it was: “Whether, after all, the Committee, with the best intention, and with the best ability, and steadiest application, might not, to a certain degree, be tools in the hands of the Duan.” The question was objected to, and given up.

On his cross-examination, he affirmed that Gunga Govind Sing had not a bad character, he thought he had in general a good character. To show that three lacs of the money privately received were sent to the Berar army, two questions were put, to which the managers objected, with as little to justify their objections, as those of their opponents, and more to condemn them, because contrary to the principles to BOOK VI. Chap. 2. 1790.which they were calling for obedience on the opposite side.

The managers added the following pertinent questions: “Whether during the whole of the year 1780, there was any such distress in the Company’s affairs as to put them to difficulty in raising three lacs of rupees?—I do not believe there was.—Whether after the year 1781, the Company did not borrow several millions?—They borrowed very large sums; I cannot say what.”

This was intended to meet the allegation of Mr. Hastings, that the extreme exigence of the Company’s affairs had led him to the suspicious resource of taking clandestine sums of money from the subjects and dependants of the state.

After some further evidence, bearing upon the same points, and exciting objections of the same tendency, on which therefore it is unnecessary to dwell, the managers proceeded to the questions connected with the province of Dinagepore, whence one of the secret sums had been derived.

In order to show the opinion of Mr. Hastings himself, that great enormities might be committed under the Committee of Revenue, and yet be concealed, they read the passage from his minute of the 21st of January, 1785, in which he says, “I so well know the character and abilities of Rajah Deby Sing, that I can easily conceive it was in his power both to commit the enormities which are laid to his charge, and to conceal the grounds of them from Mr. Goodlad,” the collector, and Company’s chief officer in the district. The managers said, they would next proceed to show the enormities themselves.

But the Counsel for the defendant objected, on the ground they had so often successfully taken, that these enormities were not matters of charge. To this, as before, the simple answer is, that corruptionBOOK VI. Chap. 2. 1790. was the matter of charge; and that the enormities of a man placed in a situation to do mischief might be a necessary and important article in the proof that corruption placed him there. To reject it was, therefore, to reject that without which it might be that justice could not be faithfully administered; without which it might be that misconception would be created in the mind of the judge; and hence misdecision, wrong in place of right, become the ultimate and unavoidable result.

The managers again contended that oppression was a matter of charge; that Mr. Hastings well knew it must flow from the system which he pursued; and that the honour of the Court, and the character of the British nation, were at stake, when the question was, whether enormities, such as no tongue could describe, should be thought worthy of investigation, or be for ever screened from it by lawyers’ ceremonies. The Counsel for the defendant answered this appeal to honour and feeling, by challenging the managers to make these enormities an article of impeachment, and boasting their readiness to meet such a charge. But this was a mere evasion. Why meet those enormities only as matter of impeachment, refuse to meet them as matter of evidence? They had the same advantages in the one case as in the other. They might equally display the weakness, if any existed, in the evidence brought to support the allegations; they might equally bring counter evidence, if any existed, to disprove them. As far therefore as the challenge had any effect, it was an effect contrary to the interests of justice.1

The Lords retired to their chamber to deliberate; and, on their return, which was not till the succeeding day of the trial, announced, that it was not competent for the managers to produce the evidence proposed.

To show that the offices of Farmer of the revenue, and Duan, the latter of which was intended to be a check upon the former, were never united in one person, except in two of the instances in which Mr. Hastings received money, the following extract of a letter from Mr. Shore, President of the Committee of Revenue, to the Governor-General and Council, dated 2d of November, 1784, was read: “Rajah Deby Sing was Farmer, Security, and Duan of Rungpore. The union of the two former offices in the same person requires no explanation, since the practice is very general, and is founded upon solid and obvious reasons. The investiture in the office BOOK VI. Chap. 2. 1790.of Duan, during the period in which he held the farm, is less common, but not without precedent; for Rajah Cullian Sing stood precisely in the same predicament with regard to the province of Behar.”

The managers next adduced evidence, with respect to an offer made by the Vizir in the month of February, 1782, of a second present of ten lacs of rupees to Mr. Hastings. Mr. Hastings declined acceptance of the present, on his own account; and communicated the circumstance to the Council, who used endeavours to obtain the money for the Company.

Evidence was next adduced to prove that Mr. Hastings had remitted, through the East India Company, since his first elevation to the head of the government in Bengal, property in his own name to the amount of 238,757l.

Mr. Shore being examined whether Gunga Govind Sing was a fit person to be Duan, or principal executive officer of revenue, declared that, in his opinion, no native ought to have been employed in that situation. To the character of the natives, in general, he ascribed the highest degree of corruption and depravity.

Mr. Fox summed up the evidence, thus adduced on the sixth and on part of the seventh and fourteenth articles of impeachment, on the 7th and 9th of June, 1790, the sixty-eighth and sixty-ninth days of the trial. The Lords then adjourned to their chamber and agreed to postpone the trial to the first Tuesday in the next session of parliament.1

Some incidents, which, during these proceedings, took place in the House of Commons, it is requisite briefly to mention. On the 11th of May, in conformity with a previous notice, Mr. Burke, after a speech in which he criticized severely the petitions ofBOOK VI. Chap. 2. 1790. Mr. Hastings, who had bewailed the hardships of the trial, and complained of delays, though he himself, he affirmed, was the grand cause of delay, and appeared to have contrived the plan of making his escape by procrastination, moved two resolutions: First, that the House would authorize the managers to insist upon such alone of the articles as should appear to them most conducive in the present case to the satisfaction of justice: Secondly, that the House was bound to persevere till a judgment was obtained upon the articles of principal importance. The minister supported the first of the motions, but the other, as unnecessary, he thought the manager ought not to press. Mr. Fox laid the cause of delay upon the obstructions to the receipt of evidence, particularly the want of publicity in the deliberations upon the questions of evidence in the House of Lords; because every decision, unaccompanied with reasons, was confined to a solitary case; and all other cases were left as uncertain and undecided as before. Some days after these proceedings appeared, in one of the newspapers, a letter, signed by Major Scott, containing a short review of the trial, and animadverting with great severity upon the managers; treating it as no better than a crime, and indeed a crime of the deepest dye, to have prosecuted so meritorious an individual as Mr. Hastings at all; but a still greater enormity not long ago to have closed all proceedings against him. Of this publication complaint was made in the House of Commons. The author, as a member of the House, was heard in his defence. The letter was treated as a libel on the managers, and a violation of the privileges of the House. The minister admitted the truth of these allegations; but urged, with great propriety, That the House had exceedingly relaxed BOOK VI. Chap. 2. 1790.its practice, in restraining the publication either of its proceedings, or censures bestowed upon them; that the common practice of the House formed a sort of rule, a rule to which every man had a right to look, and which he had a right to expect should not be violated in his particular case; that under a law, formed by custom, or fallen partially into desuetude, no individual instance ought to be selected for punishment if it was not more heinous than those which were commonly overlooked; and, on these principles, that the present offence, though it might require some punishment, required, at any rate, a very gentle application of that disagreeable remedy. The managers were more inclined for severity. Mr. Burke made an important declaration; “That he was not afraid of the liberty of the press; neither was he afraid of its licentiousness; but he avowed that he was afraid of its venality.” He then made an extraordinary averment, that 20,000l. had been expended in the publication of what he called “Mr. Hastings’s libels.” It was finally agreed, that the offender should be reprimanded by the speaker in his place.

Before the time appointed by the House of Lords for resuming the business of the trial, the parliament was dissolved. This gave birth to a question, whether a new parliament could proceed with the impeachment; and whether a proceeding of that description did not abate or expire with the parliament which gave it birth. The new parliament assembled on the 25th of November, 1790; and on the 30th, the subject was started by Mr. Burke, who exhibited reasons for proceeding with the trial, but intimated his suspicion that a design was entertained in the House of Lords to make the incident of a new parliament a pretext for abating the impeachment. On the 9th of December, a motion was brought forward, that on that day se’nnight the House shouldBOOK VI. Chap. 2. 1790. resolve itself into a committee to take into consideration the state in which the impeachment of Warren Hastings, Esq. was left at the dissolution of the last parliament. In opposition to this motion it was proposed, that the House should determine a more limited question, whether or not it would go on with the impeachment. Mr. Pitt was of opinion, that it was not fit to wave a question respecting an important privilege of the House, when that privilege was called in question. The original motion was therefore carried. On the day appointed for the Committee, the motion that the Speaker do leave the chair was opposed by allegations of the excellence of the conduct of Mr. Hastings, and the hardships to which he had been exposed, by the length of the trial, and the asperity of the managers. Mr. Pitt said, the question to which these arguments applied was the question whether it was proper in the House to go on with the impeachment. He wished another question to be previously, and solemnly decided, whether it had a right to go on with it. Mr. Burke said, that gentlemen seemed afraid of a difference with the House of Lords. For his part, “he did not court—fools only would court, such a contest. But they who feared to assert their rights, would lose their rights. They who gave up their right for fear of having it resisted, would by and bye have no right left.” The motion was carried after a long debate. On the 22d, the business was resumed, on the question, whether the trial of Warren Hastings was pending or not. The debate lasted for two days. The minister, and by his side Mr. Dundas, joined with the managers in maintaining the uninterrupted existence of the trial. Almost all the lawyers in the House, Mr. Erskine among them, contended vehemently that the dissolution BOOK VI. Chap. 2. 1790.of parliament abated the impeachment. This brought forth some strictures upon the profession, which formed the most remarkable feature of the debate. Mr. Burke said, that “he had attentively listened to every thing that had been advanced for and against the question; and he owned he was astonished to find, that the lawyers had not brought a single particle of instruction with them for the use of those that were laymen. One learned gentleman had given the solution, by confessing that he was not at home in that House. The same might be said of most of his brethren. They were birds of a different class, and only perehed on that House, in their flight towards another. Here they rested their tender pinions, still fluttering to be gone, with coronets before their eyes. They were like the Irishman, who, because he was only a passenger in the ship, cared not how soon she foundered.” Mr. Grant said, the great zeal for Parliamentary Law, and Constitutional Law, always forced into his mind the adage, latet anguis in herba. They were wide grasping phrases, admirably calculated to promote, without confessing, a design of acting agreeably to arbitrary will. Mr. Fox was very pointed in his strictures on the professors of the law. “If to their knowledge of the law,” he said, “the lawyers were to add some regard to the constitution, it would be no great harm. He saw the high necessity of impeachments, not so much to check ministers, as to check the courts of justice. Suppose our judges were like some of those in the reign of Charles the Second. Where was our remedy, if not in impeachment? If that great instrument of safety was made inefficient, we should have no law, no justice, not even a scintilla of liberty. He reprobated the gentlemen of the long robe for having, as it were, conspired to oppose the motion. When he saw a corps of professionalBOOK VI. Chap. 2. 1791. people, a knot of lawyers, a band of men, all animated with l’esprit du corps, setting themselves against the liberty of the subject, and the best means of supporting the constitution, he should say it was worse than the Popish plot in Charles the Second’s time, if any Popish plot did then exist.” Mr. Burke said, “he wished the country to be governed by law, but not by lawyers.” The motion was finally carried by a great majority.

The business was not resumed till the 14th of February 1791, when it was moved by Mr. Burke, that the House should proceed with the impeachment. In a long speech he endeavoured to obviate the prejudices which were now generally disseminated, as if the measure was operating upon the defendant with cruelty and oppression. “It had been argued,” he said, “that the trial had lasted a long time, and that the very length of it was a sufficient reason why it should cease; but if protraction was admitted as a substantial reason for putting an end to a penal investigation, he who committed the greatest crimes would be surest of an acquittal; and mankind would be delivered over to the oppression of their governors; provinces to their plunder, and treasuries to their disposal.“—”False compassion aimed a stroke at every moral virtue.” He affirmed that the managers were chargeable with none of the delay. Though the quantity of the matter was unexampled, a small number of days had been employed in hearing the speeches they made, or the evidence which they tendered. For all the rest any body in the world was responsible rather than they. He then displayed the great and numerous difficulties which had been thrown in the way of the prosecution: and asked if the House “had forgotten, there was such BOOK VI. Chap. 2. 1791.a thing as the Indian interest; which had penetrated into every department of the constitution, and was felt from the Needles, at the Isle of Wight, to John o’Grot’s House!” He then complained of the extraordinary obstructions raised “by certain professors of the law, whose confined and narrow mode of thinking, added to their prejudices, made them enemies to all impeachments, as an encroachment on the regular line of practice in the courts below.” Yet, notwithstanding the importance of these considerations, that he might comply with the spirit of the times, he should propose, that the managers proceed no further than to one other article; that on contracts, pensions, and allowances; which, as Mr. Hastings had defended the acceptance of presents, by alleging the pecuniary wants of the Company, and as the proof of this article would show that where poverty was pretended profusion had prevailed, was an article, necessary to complete the proof of the offences, which were charged under the previous head of accusation. After a long debate, in which nothing of particular moment occurred, the several motions for proceeding in the impeachment, so limited and reduced, were put and carried.

When the intention of the Commons to proceed with the impeachment was announced to the Lords, a committee was formed to search the journals for precedents. The question was at last debated on the 20th of May. The only circumstance of much importance, in the debate, was one of the arguments employed by the Lord Chancellor to prove that impeachments abated by the dissolution of parliament. They abated, he said, because one of the parties to the prosecution, namely, the Commons, became extinct. If it were alleged that the whole people of England were the real prosecutors, as the acts of the Lower House of Parliament were the acts of the people, heBOOK VI. Chap. 2. 1791. had two things to reply. The first was, that the acts of the House of Commons could not be regarded as the acts of the people of England; because the House of Commons did not actually represent the people of England; it represented them no more than virtually. The next thing was, that their Lordships’ House of Parliament knew nothing about the people, as an acting body in the state; they knew only the House of Commons, the acts of which, he had shown, were not the acts of the people. The people, therefore, were not parties to an impeachment. Lord Loughborough attempted to answer this argument; but, as he produced nothing which refuted the assertion, that the House of Commons did not represent the people of England; did not, in any such sense represent them, as could allow it with truth to be said that the acts of that House were the acts of the people; so he said nothing which bore with any force upon the point, till he came to allege that the people had the power of insurrection. “Let not their Lordships,” he said, “act incautiously with regard to the popular part of the constitution! Let them look about them, and be warned! Let them not deny that the people were any thing; lest they should compel them to think that they were every thing.“

On the unfitness of the constitution to produce good government, unless impeachment existed in a state of real efficiency, Lord Loughborough followed Mr. Fox and Mr. Burke. Without this, “it would be impossible to get at a bad minister, let his misdemeanours and crimes be ever so enormous: Our much-boasted constitution would lose one of its best securities; and ministerial responsibility would become merely nominal.” In other words, it would have no existence; we should have, instead of it, an BOOK VI. Chap. 2. 1791.impostrous pretence. Mr. Burke, however, and Mr. Fox asserted; and no one who understands the facts can honestly dispute; that the mischievous rules of evidence and procedure set up by the lawyers, and sanctioned by the Lords, make impeachment effectual, not for the punishment of the guilty, but their escape. That the constitution of England is inadequate to the purposes of good government; as no improvement in that respect has since taken place; is, therefore, the recorded opinion of three at least of the most eminent men of the last generation. After a long debate, it was finally agreed, that the impeachment was depending; and that on the 23d the House would resume proceedings in Westminster Hall.

The Lords having taken their places, and the usual preliminaries performed, Mr. St. John was heard to open the fourth article of the impeachment; that in which was charged the crime of creating influence, or of forming dependants, by the corrupt use of public money.

Under this head of the trial, the material incidents are few.

The topic of influence was of a more extensive application, than the question relating to Mr. Hastings, or than all the questions relating to India taken together. On this subject, to which the most important question respecting the actual state of the British constitution immediately belongs, Mr. St. John laid down the following doctrines: “That all the checks of the constitution, against the abuse of power, would be weak and inefficient, if rulers might erect prodigality and corruption into a system for the sake of influence: That public security was founded on public virtue, on morals, and on the love of liberty: That a system which tended to set public virtue to sale, to pluck up morals by the roots, and to extinguish the flame of liberty in the bosoms of men, could not beBOOK VI. Chap. 2. 1791. suffered to escape punishment, without imminent peril to the public weal.” Whether Mr. Hastings was guilty or not guilty of creating that influence, remained to be proved: That it tends more than almost any other crime to deprive the people of England of the benefits of good government, it is impossible not to perceive.

As soon as the opening speech was concluded, Mr. Hastings rose. As the length of his address is moderate, and as it affords a specimen of the manner in which Mr. Hastings demeaned himself to the Lords, its insertion will be repaid by the instruction which it yields.

“My Lords,

“I shall take up but a very few minutes of your time: but what I have to say, I hope, will be deemed of sufficient importance to justify me in requesting that you will give me so much attention. A charge of having wasted 584,000l. is easily made, where no means are allowed for answering it. It is not pleasant for me, from week to week, from month to month, from year to year, to hear myself accused of crimes, many of them of the most atrocious dye, and all represented in the most shocking colours, and to feel that I never shall be allowed to answer them. In my time of life—in the life of a man already approaching very near to its close, four years of which his reputation is to be traduced and branded to the world, is too much. I never expect to be allowed to come to my defence, nor to hear your Lordships’ judgment on my trial. I have long been convinced of it, nor has the late resolution of the House of Commons, which I expected to have heard announced to your Lordships here, afforded me the least glimpse of hope, that the termination of my trial is at all the nearer. My BOOK VI. Chap. 2. 1791.Lords, it is now four years complete since I first appeared at your Lordships’ bar; nor is this all; I came to your bar with a mind sore from another inquisition in another place, which commenced, if I may be allowed to date it from the impression of my mind, on the day I arrived in this capital, on my return to England after thirteen years’ service. On that day was announced the determination of the House of Commons, for arraigning me for the whole of my conduct; I have been now accused for six years; I now approach very near (I do not know whether my recollection fails me) to sixty years of age, and can I waste my life in sitting here from time to time arraigned, not only arraigned, but tortured with invectives of the most virulent kind? I appeal to every man’s feelings, whether I have not borne many things, that many even of your Lordships could not have borne, and with a patience that nothing but my own innocence could have enabled me to show. As the House of Commons have declared their resolution, that for the sake of speedy justice (I think that was the term) they had ordered their managers to close their proceedings on the article which has now been opened to your Lordships, and to abandon the rest, I now see a prospect which I never saw before, but which it is in your Lordships’ power alone to realize, of closing this disagreeable situation, in which I have been so long placed; and however I may be charged with the error of imprudence, I am sure I shall not be deemed guilty of disrespect to your Lordships in the request which I make; that request is, that your Lordships will be pleased to grant me that justice which every man, in every country in the world, free or otherwise, has a right to; that where he is accused he may defend himself, and may have the judgment of the court on the accusations that are brought against him. I therefore do pray your Lordships,BOOK VI. Chap. 2. 1791. notwithstanding the time of the year (I feel the weight of that reflection on my mind), but I pray your Lordships to consider not the unimportance of the object before you, but the magnitude of the precedent which every man in this country may bring home to his own feelings, of a criminal trial suspended over his head for ever; for in the history of the jurisprudence of this country, I am told (and I have taken some pains to search, and, as far as my search has gone, it has been verified) there never yet was an instance of a criminal trial that lasted four months, except mine, nor even one month, excepting one instance, an instance drawn from a time and situation of this government, which I hope will be prevented from ever happening again. My Lords, the request I have to make to your Lordship is, that you will be pleased to continue the session of this court till the proceedings shall be closed, I shall be heard in my defence, and your Lordships shall have proceeded to judgment. My Lords, it is not an acquittal that I desire: that will rest with your Lordships, and with your own internal conviction. I desire a defence, and I desire a judgment, be that judgment what it will. My Lords, I have bowed, I have humbled myself before this court, and I have been reproached for it. I am not ashamed to bow before an authority to which I owe submission, and for which I feel respect that excites it as a willing oblation from me. I now again, with all humility, present myself a subject of your justice and humanity. I am not a man of apathy, nor are my powers of endurance equal to the tardy and indefinite operation of parliamentary justice. I feel it as a very cruel lot imposed on me, to be tried by one generation, and if I live so long, to expect judgment from another; for, my Lords, are all the BOOK VI. Chap. 2. 1791.Lords present before whom I originally was tried? Are not many gone to that place to which we must all go? I am told that there is a difference of more than sixty in the identity of the judges before whom I now stand. My Lords, I pray you to free me from this prosecution, by continuing this trial till its close, and pronouncing a judgment during this session; if your Lordships can do it, I have a petition to that effect in my hand, which, if it is not irregular, I now wish to deliver to your Lordships.”

There was exquisite adaptation, either with or without design, in the conduct of Mr. Hastings, to the circumstances in which he was placed. The tone of submission, not to say prostration, which he adopted towards the Court, was admirably suited to the feelings of those of whom it was composed. The pathetic complaints of hardship, of oppression, of delay, of obloquy, began when the tide of popular favour began to be turned successfully against the agents of the prosecution; and they increased in energy and frequency, in proportion as odium towards the managers, and favour towards himself, became the predominant feeling in the upper ranks of the community.

This odium, and this favour, are not the least remarkable among the circumstances which this impeachment holds up to our view. During the trial, what had the managers done to merit the one; what had Mr. Hastings done, to merit the other? Convinced, for it would be absurd to suppose they were not convinced, that they had brought a great criminal to the judgment seat, they had persevered with great labour to establish the proof of his guilt. Mr. Hastings had suffered a great expense; and at that time, it could not be known that he had suffered any thing more than expense. The necessity of labour and attendance was common to him with his accusers. As for suspense, where a man is guilty, the feelingBOOK VI. Chap. 2. 1791. connected with it may be a feeling not of pain but of pleasure; a feeling of hope that he may escape. To a man who is sure to be condemned, delay may be a benefit. The innocent man alone is he to whom it is necessarily injurious: and the innocence of Mr. Hastings was not yet decreed.

Of the causes of the odium incurred by the managers, and the favour acquired by the defendant, I am unable to render a perfect account. There is much of secret history connected with it, which it is not possible to establish, on evidence which history can trust. This much may be said, for it rests on public grounds: The managers brought a great deal of rhetoric, with papers and witnesses, to the trial; and seemed unhappily to think that rhetoric, papers, and witnesses were enough: They brought not much knowledge of those grand pervading principles which constitute the moral and rational standard of all that ought to be law, and on which they might have grounded themselves steadfastly and immoveably in defiance of the lawyers: And they brought little dexterity; so that the lawyers were able to baffle, and insult, and triumph over them, at almost every turn. After the prosecution was rendered unpopular, the intemperance of the tone and language of Mr. Burke operated strongly as a cause of odium; yet it is remarkable, that when that same intemperance was speedily after carried to greater excess, and exerted in a favourite direction, that is, against the reformers in France, it became, with the very same class of persons, an object of the highest admiration and love. The favour with which the cause of Mr. Hastings was known to be viewed in the highest family in the kingdom, could not be without a powerful effect on a powerful class. The frequency with BOOK VI. Chap. 2. 1791.which decisions and speeches, favourable to him, were made in the House of Lords; the defence which he received from the great body of the lawyers; the conversation of a multitude of gentlemen from India, who mixed with every part of society; the uncommon industry and skill with which a great number of persons, who openly professed themselves the agents or friends of Mr. Hastings, worked, through the press, and other channels, upon the public mind; and, not least, the disfavour which is borne to the exposure of the offences of men in high situations, in the bosom of that powerful class of society which furnishes the men by whom these situations are commonly filled; all these circumstances, united to others which are less known, succeeded, at last, in making it a kind of fashion, to take part with Mr. Hastings, and to rail against the accusers.

In the present speech of Mr. Hastings, and the petition which it echoed, it surely was, on his part, an extraordinary subject of complaint, that, between the delivery of the accusations, and the delivery of his defence, a long period had intervened: When the managers had from the beginning most earnestly contended that, immediately, after each of the accusations, he should make his defence upon each; and he himself had insisted, and victoriously insisted, that he should not.

Of the delay, one part was owing to the nature of the charges and the nature of the evidence; the one comprehensive, the other voluminous. This was inseparable from the nature of the cause. The rest, a most disgraceful portion, was owing to the bad constitution of the tribunal, and its bad rules of procedure; causes of which Mr. Hastings was very careful not to insinuate a complaint. The whole odium of the accusation fell, as it was intended to fall, upon the managers, to whom, unless guilty ofBOOK VI. Chap. 2. 1791. delay, which was never alleged, in bringing forward the evidence, not a particle of blame under this head belonged.

When Mr. Hastings desired to represent the hardship as unparalleled in his native country of remaining under trial during four years; he was very little informed of the dreadful imperfections of the law of that country, and of the time which any poor man, that is the far greater number of men, is liable to remain, not in the enjoyment of freedom and every comfort which wealth can bestow; but in the most loathsome dungeons, without bread sufficient to eat, or raiment to put on, before trial begins, and after acquittal is pronounced. In that last and most cruel state of human suffering, there was at that time no limit to the number of years, during which, without guilt, or imputation of guilt, a man (as a debtor) might remain.

To prove that Mr. Hastings had created influence, to ensure to himself by the misapplication of the public money a corrupt support, five instances were adduced: a contract of opium, granted to Mr. Sulivan; an illegal traffic in opium, for the alleged purpose of remitting money of creatures and dependants; undue allowances granted to Sir Eyre Coote; a contract for bullocks; and two contracts for grain. The two cases to which the greatest suspicion attaches are the opium contract; and the money given to Sir Eyre Coote.

With regard to the contract, the facts are shortly these. Mr. Sulivan was the son of the Chairman of the Court of Directors: He was a very young man, with little experience in any of the affairs of India, and no experience in the business of opium at all: The Court of Directors ordained, that all contracts BOOK VI. Chap. 2. 1791.should be for one year only, and open to competition: The opium contract was given to Mr. Sulivan, without competition, by private bargain, and not for one year only, but four: Mr. Sulivan possessed the office of Judge Advocate; he was further appointed Secretary to Mr. Hastings, and attended him on his journey to the Upper Provinces: He could not therefore attend to the business of the contract, and he sold it: He sold it to Mr. Benn for a sum of about 40,000l.: Mr. Benn sold it to Mr. Young for 60,000l.: And Mr. Young confessed that he made from it an ample profit. From these facts the managers inferred, that the contract was given at an unfair price to Mr. Sulivan, for enabling the son of the Chairman to make a fortune, and Mr. Hastings to ensure the father’s support. “It was melancholy,” they said, “to see the first Officer of the Company at home, and their first Officer abroad, thus combining in a system of corruption, and sharing the plunder between them.”

The facts adduced on the other side were; that the rule of forming the opium contract for one year, and openly, had long been dispensed with, and for good reasons, with the consent of Mr. Francis himself; that a more favourable bargain was not granted to Mr. Sulivan than to his predecessor; and that Mr. Benn and Mr. Young owed their profits to their own peculiar knowledge of the business.

The question however is not yet answered, why it was given to a man, who it was known could not keep it; and who could desire it only for the purpose of selling it again with a profit; when it might have been sold to the best purchaser at once.

In the case of Sir Eyre Coote, the following were the facts: “That 16,000l. per annum was the pay allowed him by the Company, and ordered to stand in lieu of all other emoluments: That it was of greatBOOK VI. Chap. 2. 1791. importance to the Governor-General to obtain his support in the Council, of the votes of which he would then possess a majority: That shortly after his arrival, a proposition, introduced by himself, and supported by the Governor-General, was voted in the Council, for granting to him, over and above the pay to which he was restricted by the Court of Directors, a sum exceeding 18,000l. per annum, under the name of expenses in the field: That the General began immediately to draw this allowance, though in a time of peace, under the pretence of visiting the stations of the army: That the burden was speedily shifted from the shoulders of the Company, to those of the Nabob Vizir, by the General’s arrival to visit the stations of the army in Oude: That the face put upon the matter was, to charge the payment of the allowances upon the Vizir, only while the General was in the territory; but that in fact they never were taken off so long as the General lived: That the Court of Directors condemned these allowances: but this condemnation was disregarded, and the allowances paid as before.

The facts operating in favour of Mr. Hastings were; That General Stibbert, when acting as Commander-in-chief only for a time, had, partly by the orders of the Court of Directors, partly by the liberality of the Governor-General in Council, received an allowance of about 12,000l. for his expenses in the field: that Sir Eyre Coote represented an allowance, equal to that received by General Stibbert, as absolutely necessary to save him from loss, when subject to the expenses of the field: that, notwithstanding the treaty, expressly confining the demands of the English government upon the Vizir to the expense of one battalion of troops, he did in fact pay BOOK VI. Chap. 2. 1791.for more, because more were by his consent employed in his country, the whole expense of which (and the field allowance to the General when at those stations of the troops were stated as part of that expense) he was called upon to defray.

Mr. Hastings further alleged, that this sum was paid with great cheerfulness by the Vizir, even after the General left the territory of Oude; that the General was soon after called to Madras to oppose Hyder Ali; that his death was evidently approaching; and that it would have been imprudent to make him throw up the service in disgust, by telling him that the Court of Directors condemned the allowance, when he alone could save the British interests in India from that destruction with which they were threatened by Hyder.

Upon the comparison of these facts, the following questions remain unanswered: Why not postpone the allowance, till the Directors were consulted? Why give the General 6,000l. per annum more than he asked? Why make the allowance to General Stibbert, whose pay was only 7,500l. per annum, a rule for a man whose pay was 16,000l., and who was expressly declared to have received that large amount in lieu of all other emoluments? It is farther, in plain language to be declared (for this practice of governments cannot be too deeply stamped with infamy,) that it was hypocrisy, and hypocrisy in its most impudent garb, to hold up the consent of the Nabob, as a screen against condemnation and punishment: when it is amply proved that the Nabob had not a will of his own; but waited for the commands of the Governor-General, to know what, on any occasion that interested the Governor-General, he should say that he wished. When the Governor-General wished to lay upon the Vizir the expense of a greater portion of the Company’s army, than wasBOOK VI. Chap. 2. 1791. contracted for by treaty, what could he do? He knew it was better for him to submit than to contest; and if so, it was evidently his interest to afford to the transaction any colour which the Governor-General might suggest, or which it was easy to see would best answer his purposes. Cheerfully paid by the Nabob! No doubt. We have seen the Nabob eager to make presents; presents of one sum, after another, of a hundred thousand pounds, to the great man on whom depended the favour he hoped, or the disfavour he dreaded; at the time when he was complaining that his family were unprovided with bread. At the very time when he is said to have cheerfully paid nearly two lacs of rupees per annum to Sir Eyre, he was writing to the Governor-General the most pathetic descriptions of the misery to which he was reduced by the exactions of the English government; and declaring that “the knife had now penetrated to the bone.” But by what power was this eagerness to bribe the powerful servants of the Company produced? Could it be regarded, in any sense, as a voluntary act, the fruit of benevolence and friendship? Was it not extorted by what may truly be denominated the torture of his dependance; the terror of those evils which he contemplated in the displeasure of his masters? It is infamous to speak of presents from a man, in such a situation, as free gifts. No robbery is more truly coercion.

Again: the allegation that Sir Eyre Coote would have deserted his post, as a soldier, and abandoned his country in a moment of extreme exigency, upon a question of 18,000l. per annum; stamps with infamy, either the character of that General, if it was true, and it is not without appearances to support it; or that of Mr. Hastings, if it was false.

On the 30th of May, 1791, and the seventy-third day of the trial, Sir James St. Clair Erskine was heard to sum up the evidence upon the fourth article of impeachment. “Then the managers for the Commons informed the House, that, saving to themselves all their undoubted rights and privileges, the Commons were content to rest their charge here.” Mr. Hastings made a humble address to the court, and alluding to his last petition which yet lay upon the table unconsidered, he implored that, if the prayer of that petition was not complied with, he might be allowed to appear, at least, one day at their Lordships’ bar, before the end of the present session. The Lords adjourned, and sent a message to the Commons, from their own house, that they would sit again on the 2d of June. The next day, in the House of Lords, a motion, grounded upon a letter of Mr. Hastings, requiring only fourteen days for the time of his defence, was made by one of the peers, for an address to the King that he would not prorogue the parliament, till the conclusion of the trial. The proposition of Mr. Hastings to confine his defence to any number of days, was treated by Lord Grenville as absurd. How could Mr. Hastings know what questions would arise upon evidence, and how much time their Lordships might require to resolve them; business which had occupied the principal part of the time that had already been spent? How could he know what time the Commons might require for their evidence, and speeches in reply? How could he know what time their Lordships the Judges wouldBOOK VI. Chap. 2. 1791. require for deliberation on the evidence which they had heard? The motion was rejected.1

On the 2d of June, the seventy-fourth day of the trial, Mr. Hastings read a written paper, containing his defence. As far as the matter of it was any thing in answer to the facts which have been charged as criminal, or tends to the demonstration of innocence, it has either been already adduced, when the fact or the charge was exhibited; or will hereafter be stated when the evidence is brought forward on which the allegation was grounded. One or two incidents it is instructive to mention.

Mr. Hastings declared, in the beginning of his paper; that if his judges would only then come to a decision, he would wave all defence. He risked nothing by this proposition; to which he well knew that the Lords would not consent. But he gained a great deal by the skill with which his declaration insinuated the hardship of delay.

It is observable that most of the ill-favoured acts of Mr. Hasting’s administration, the extermination of the Rohillas, the expulsion of Cheyte Sing, the seizure of the lands and treasures of the Begums, and the acceptance of presents, were all for the acquisition of money. Though Mr. Hastings insisted, that all these acts were severally justifiable in themselves, without the plea of state necessity, yet state necessity, the urgent wants of the Company, are given, as the grand impelling motive which led to the adoption of every one of them. They are exhibited by Mr. Hastings, as acts which saved the BOOK VI. Chap. 2. 1791.Company, acts without which, according to him, the Company must have perished.1

Towards the end of his defence, he rises to a most exulting strain:

“To the Commons of England, in whose name I am arraigned for desolating the provinces of their dominion in India, I dare to reply, that they are, and their representatives annually persist in telling them so, the most flourishing of all the States in India—It was I who made them so.

“The valour of others acquired, I enlarged, and gave shape and consistency to the dominion which you hold there; I preserved it; I sent forth its armies with an effectual, but economical hand, through unknown and hostile regions, to the support of your other possessions; to the retrieval of one from degradation and dishonour: and of the other, from utter loss and subjection. I maintaind the wars which were of your formation, or that of others, not of mine. I won one member2 of the great Indian Confederacy from it by an act of seasonable restitution; with another3 I maintained a secret intercourse, and converted him into a friend: a third4 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 object of it, I resisted this, and every other species of counteraction, by rising in my demands; and accomplished a peace, and I hope everlastingBOOK VI. Chap. 2. 1792. one, with one great State;1 and I at least afforded the efficient means by which a peace, if not so durable, more seasonable at least, was accomplished with another.2

“I gave you all, and you have rewarded me with confiscation, disgrace, and a life of impeachment.“

The House having heard his address, adjourned to the chamber of parliament, where it was determined they should proceed with the impeachment on the first Tuesday in the next session of parliament.

On the 14th day of February, 1792, and the seventy-fifth day of the trial, the court was next assembled. Mr. Law, the leading council for Mr. Hastings, began to open the defence. The length of the trial, the toils of the Lords in sustaining the burthen of judges, the sufferings of the prisoner under the evils of delay, of misrepresentation, of calumny, and insult, were now become favourite and successful topics, well remembered both by Mr. Hastings and his counsel. A mischievous prejudice was hatched; that of all these evils, the prosecution itself was the cause; as if crimes of the nature of those imputed to Mr. Hastings were crimes of which it is easy to establish the proof; as if the prosecution of such crimes, apt to be the most hurtful of all crimes, were an evil, not a good; as if those by whom that service is powerfully and faithfully rendered were among the enemies, not the greatest benefactors of mankind! Mr. Hastings, it may be said, committed no crimes. Be it so. Yet it will not be disputed that he committed acts which looked so much like crimes, that it was fit in the House of Commons to send them, as it did, to their trial; it BOOK VI. Chap. 2. 1791.was fit in the managers to adduce such evidence as they believed would make known the fact; to accompany that evidence with such observations as they thought best adapted to discover its application and force; and to resist such attempts as they conceived were made to prevent the exhibition and accurate appreciation of evidence, and hence the disclosure and conviction of guilt. Whatever time was necessary for this, was legitimately and meritoriously bestowed. It has not been attempted to be proved, that the managers consumed one instant of time that was not employed in these necessary functions. The number of hours so consumed was not great. Of all the rest, the court and the defendant were the cause; and upon the delay, which they themselves produced, they laboured to defame, or acted in such a manner as had the effect of defaming, the prosecution of all complicated offences; in other words, of creating impunity for the whole class of great and powerful offenders.

Though blame, and even ridicule, and insult, had been bestowed upon the managers, for the length of their speeches, Mr. Law consumed three whole days with the speech in which he made the general opening of the defence. After he had finished, Mr. Plumer commenced on the first article of impeachment, the charge relating to Benares; and with his speech he occupied five days. It was not till the 1st of May, and the eighty-third day of the trial, that the defensive evidence began to be adduced. The mass of evidence given in defence was still greater than that presented by the managers. Appendix included, it occupies nearly twice as many pages of the printed minutes. Of this mass very little was new, excepting some parole evidence, chiefly intended to prove that there was disaffection, and preparations for rebellion, on the part of Cheyte Sing, beforeBOOK VI. Chap. 2. 1793. the arrival of Mr. Hastings at Benares. That evidence completely fails. That Mr. Hastings believed in nothing like rebellion, is evident from his conduct. Besides; would the proper punishment for rebellion have been a fine of fifty lacs?

In making objections to evidence, the managers were only less active than Mr. Law. One thing may be said against them; and one thing for them. It was inconsistent in them to follow a course, which they had made a ground of complaint against their opponents. But as their opponents had seized the benefit of a particular instrument, it would have been to place themselves by their own act, in a state of inequality and disadvantage, had they refused to defend themselves by the same weapons with which they were assailed. There was no instance of exclusion which falls not under some of the heads, on which reflections have already been adduced.

Mr. Dallas, of Counsel for the defendant, was then heard to sum up the evidence on this head of the defence; and occupied the greatest part of three days with his speech. As soon as he had finished, the House adjourned to the chamber of parliament; and agreed to proceed in the trial on the first Tuesday in the next session of parliament.1

Though parliament re-assembled on the 13th of December, 1792, the House of Lords did not resume proceedings in the trial till the 15th day of February, 1793. This was the ninety-sixth day of the trial. Mr. Law opened the defence, on the charge relative to the Begums of Oude, in a speech two days long. He began “with,” says the historian of the trial, “a BOOK VI. Chap. 2. 1793.very affecting introduction; in which he stated that the situation of his oppressed client was such, as, he believed, no human being, in a civilized nation, had ever before experienced; and which, he hoped, for the honour of human nature, no person would ever again experience.” The moral was; that the prosecution which produced so much oppression was a wicked thing; that the managers, who were the authors of it, were the oppressors; and that the defendant, who bore the oppression, no matter for the allegations of his oppressors, deserved benevolence and support, not condemnation and punishment. In this lamentation, therefore, of the lawyer, the force of a multitude of fallacies, which his auditors, he knew, were well prepared to imbibe, were involved; and a variety of unjust and mischievous ideas, though not expressed, were effectually conveyed.

Of the evidence tendered, on this part of the defence, the result has already been fully adduced. During the delivery of it only one incident occurred, of which the importance would compensate description. On the third of the days allotted to the delivery and receipt of the evidence, on which day the managers had been minute and tedious in their cross examination, Mr. Hastings made another address to the Court. The benefit derived from his former attempts, and from the pathetic exordiums of the Counsel, encouraged repetition. “He said it was with pain, with anxiety, but with the utmost deference, that he claimed to be indulged in a most humble request that he had to make; which request was, that their Lordships would, in their great wisdom, put as speedy a termination to this severe and tedious trial, as the nature of the case would admit.” His expense, and the loss of witnesses by delay, were the hardships of which, on this occasion, he principally complained. He took special care, however, to inform the Court,BOOK VI. Chap. 2. 1793. that though “it was known there had been great and notorious delays; in no moment of vexation or impatience, had he imputed those delays to their Lordships.”1 True, indeed! That would have been a course, most inconsistent with his kind of wisdom. On the 25th of April, the evidence was closed; Mr. Plomer began to sum it up; and continued his speech on the 30th of April, and the 2d and 6th of May, the next three days of the trial.2

On the 9th of May, which was the 111th day of the trial, Mr. Dallas began to open the defence on as much as had been insisted upon by the managers, of the sixth, seventh, and fourteenth articles of impeachment. His speech continued four days. On the second day of the speech, when the Lords returned to the chamber of parliament, another petition was presented to them from Mr. Hastings, urging again the hardship of his case, and presenting a most humble prayer for the termination of his trial during the present session of parliament. Not satisfied with this; as soon as Mr. Dallas had brought his opening speech to a close, Mr. Hastings made a short address to the Court, which he read from a paper. Describing his state of suspense as “become almost insupportable,” he stated his resolution to abridge the matter of his defence, both on the above articles, and also the fourth, relating to influence, in such a manner, as to be able to deliver it in three days, that the managers for the Commons might have time to conclude their reply during the present session. With respect to a declaration, in this address, that, for eminent services to his country, he had been rewarded with injustice BOOK VI. Chap. 2. 1793.and ingratitude, Mr. Burke said, it was for the Lords to consider the propriety of such a speech, as applied by a culprit at their bar to the Commons of Great Britain; and he entered a caveat against the proposal of the defendant to deprive himself of any thing due to his defence; since he might thus be cunningly providing for himself a plea, that, had he not omitted his evidence, the proof of his innocence would have been rendered complete.

Of the evidence brought forward under those several heads, the only material point, which has not been already presented to view, is that relating to the remittances of the defendant. It appeared that 238,757l. had been remitted through the Company in the name of Mr. Hastings. Mr. Woodman, his attorney, swore, that the greater part of this was remitted for other persons; and that the sum remaining in his hands, as the property of Mr. Hastings, at the time of his return, was 72,463l.

A large mass of attestations of good behaviour, and of plauditory addresses from India, were presented. But these proved only one of two things; either that the prisoner deserved them; or that the authors of them were under an influence sufficient to produce them without his deservings. That the latter was the case, there can be no doubt; whatever the fact in regard to the former. Sir Elijah Impey said, in a letter from India produced to the House of Commons, “that addresses are procured in England through influence, in India through force.” Viewing the matter more correctly, we may decide that there is a mixture of the force and the influence in both places. And Mr. Burke justly described the people of India, when he said; “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 usurpedBOOK VI. Chap. 2. 1793. 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 favour, 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. They will be for ever, 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.”1

When the evidence was closed, instead of summing it up by means of his Counsel, Mr. Hastings himself addressed the Court. The object was fourfold; First, to make, under an appeal to Heaven, a solemn asseveration, of having in no instance intentionally sacrificed his public trust to his private interest; Secondly, a similar asseveration, that Mr. Woodman received all the remittances which during the period of his administration he had made to Europe, and that at no time had his whole property ever amounted to more than 100,000l.; Thirdly, to make a strong representation of the great necessities of the state, for the relief of which he had availed himself of the irregular BOOK VI. Chap. 2. 1793.supplies for which he was accused; Fourthly, to charge the managers with a design to retard the decision on the trial till another year, and to entreat the Lords to resist them.

Mr. Burke and Mr. Fox thought it necessary to take notice of the great freedom with which the defendant was at last emboldened to speak of the managers for the Commons; to repel the charge of procrastination so confidently thrown upon them; and to challenge the proof that one single moment of unnecessary delay had been created by them.

The defence was finished on Tuesday the 28th of May, 1793. On the return of the Lords to the chamber of parliament, they agreed, after a long discussion, to adjourn further proceedings on the trial till Wednesday se’night. When this resolution was communicated to the Commons, Mr. Burke addressed himself to the House. He first contented, that, considering the mass of evidence which it was necessary to digest, the time was not sufficient to prepare the reply. He next animadverted, in a style of severity, upon the appeals, made by Mr. Hastings to the House of Lords, and calculated to bring odium upon the House of Commons. A line of conduct had been pursued, which brought affronts upon the managers, the servants of the House. He said, that the managers had been calumniated.

In this, he alluded to an incident of rather an extraordinary nature. On the 25th of May, when Mr. Burke was cross-examining Mr. Auriol, and pushing the witness with some severity, and at considerable length, the Archbishop of York, who had already signalized his impatience during the cross-examinations performed by Mr. Burke, and whose son, Mr. Markham, had been in high employments under Mr. Hastings in India, “started up,” says the historian of the trial, “with much feeling; and said it was impossible for him silently to listen to the illiberal conductBOOK VI. Chap. 2. 1793. of the manager: That he examined the witness, as if he were examining, not a gentleman, but a pick-pocket: That the illiberality and the inhumanity of the managers, in the course of this long trial, could not be exceeded by Marat and Robespierre, had the conduct of the trial been committed to them.” Mr. Burke, with great dignity and great presence of mind, replied, “I have not heard one word of what has been spoken, and I shall act as if I had not.” Upon reading the printed minutes of the evidence with due care, I perceive that Mr. Burke treated the witness as an unwilling witness, which he evidently was; as a witness, who, though incapable of perjury, was yet desirous of keeping back whatever was unfavourable to Mr. Hastings, and from whom information unfavourable to Mr. Hastings, if he possessed it, must be extorted by that sort of coercion which it is of the nature and to the very purpose of cross-examination to apply. Of the tones employed by Mr. Burke, the mere reader of the minutes cannot judge; but of the questions there set down, there is not one which approaches to indecorum, or makes one undue insinuation. It was the right reverend prelate, therefore, who betrayed an intemperance of mind, which as ill accorded with the justice of the case, as with the decencies of either his judicial or his sacerdotal character.

Alluding to that outrage, Mr. Burke said, that an investigation into the conduct of the managers was indispensable; that to render investigation answerable to its end, the utmost possible publicity should be given; and that for this purpose he should move for a committee of the whole House, before which he undertook to prove, that the managers had neither protracted the trial by unnecessary delay, nor shortened it to the frustration of justice.

A discussion then took place, on a report of the words of the Archbishop, which had been published in one of the prints of the day. But, information being communicated that the prelate had just sustained a severe calamity in the loss of his daughter, the subject was dropped. Mr. Burke, with characteristic propriety, recommended to the House to overlook the offence of the dignified speaker, the real offender; but to prosecute the poor publisher, for a libel: Nobody attended to his wretched suggestion.

The next day, May the 29th, when the Lords were informed by a message from the Commons, that more time was required to prepare for the reply, they agreed to proceed with the trial on Monday se’nnight.

In the House of Commons, on the 30th, the report from the Committee was brought up; and a motion was made that a further day be desired to make the reply. A debate ensued; the House divided; and the motion was carried by a majority of more than two to one.

Mr. Burke then moved, “That the managers be required to prepare and lay before the House the state of the proceedings in the trial of Warren Hastings, Esq.; to relate the circumstances attending it, and to give their opinion, and make observations on the same, in explanation of those circumstances.”

This motion was opposed by the friends of Mr. Hastings. “Mr. Burke,” says the historian of the impeachment, “called loudly upon the justice of the House, either to dismiss him from their service as a manager of this impeachment, or allow him to defend himself from the aspersions which had been thrown upon his character. Mr. Dundas thought it would beBOOK VI. Chap. 2. 1793. prudent in the Right Honourable Manager to withdraw his motion; though, if he persisted in it, he would give him his vote. He agreed perfectly with him, that the managers had great cause of complaint. But he trusted it would not be so in future. The motion might, in its consequences, lead to a misunderstanding, that would be fatal to the impeachment. Mr. Wyndham thought the managers had been so ill-treated, that the House ought not to lose a moment in asserting its dignity and privileges. It had been said, no insults, perhaps, would be offered in future. He hoped there would not. But the managers might be treated in such a way, that they might feel themselves hurt, while yet the House could not interfere. Mr. Pitt, moved by the reasons urged by Mr. Dundas, proposed that the previous question be admitted by the Right Honourable Manager; but said, that he was, notwithstanding, so well convinced of the truth of what he had asserted, that he would vote with him, if he refused to withdraw his motion.” On a division of the House, the motion was lost by a majority of four.

On Wednesday, the 5th of June, in his place in the House of Commons, Mr. Grey, having affirmed the impossibility of being ready on Monday to reply to a mass of evidence which was not yet printed, and the further impossibility, at so late a period of the session, of going through with the remaining business of the trial, without compromising the claims of justice, said, “he should be ready in his place the next day, to move for a message to the Lords, to adjourn further proceedings in the trial till the next session of parliament, when the Commons would be ready to proceed day by day till final judgment should be given, if their Lordships thought fit.”

Mr. Dundas, as he spoke with more courage, so spoke to the point more correctly than any other man who spoke upon this occasion. “If he thought the motion could operate unjustly upon the defendant, he should be as ready,” he said, “as any one to give it his negative; but sending the managers unprepared to reply, would be neither more nor less than a complete loss of the time so misapplied. Much had been said of delay. But to whom was that delay imputable? Not, in any degree, to that House, or to the managers; against whom such insinuations were neither just, nor generous, from those gentlemen who had negatived a proposition, made by the managers on a former day, for stating the whole facts on the trial, to exculpate themselves from every shadow of foundation for such a charge. He also observed, that the cry against delay had been uniformly raised at the close of a session. Why it was not made at an early period, when propositions might have been brought forward to expedite the proceeding, he left the House to form their own opinion. If, however, there was any delay in the trial, it lay, he cared not who heard him, or where his declaration might be repeated, at the door of the House of Lords.”

On a division, however, the motion was lost by a majority of 66 to 61. Mr. Burke immediately gave notice, that, in consequence of these extraordinary proceedings, he should next day submit a motion to the House, which he deemed absolutely necessary for their honour, dignity, and character. On that day,BOOK VI. Chap. 2. 1793. Friday, the 7th of June, Mr. Grey expressed his wish to the House, that they would accept of his resignation, as a manager. It was his duty to reply to the defence of Mr. Hastings, on the first article of the impeachment. But it was impossible for him to be ready on Monday. In this distress he applied to the House for instruction. After some conversation, a motion was made by Mr. Dundas, to apply once more to the Lords for delay. While this was debated, strangers were excluded. The motion was carried by a majority of 82 to 46.

On Monday, the 10th of June, a petition to the Lords was presented from Mr. Hastings, remonstrating against the application for delay. His language now waxed exceedingly strong. “He could not but regard the further adjournment required, as derogatory to those rights which belong to him, and as warranted by no grounds of reason or justice applicable to the case.” He argued, that the time which had been allowed for preparation was quite sufficient; as the greater part of the evidence adduced in his defence had been long familiar to the managers. This allegation was true; but it is one thing to have been long familiar with a great mass of evidence; and another thing to be able to speak upon it; and to show accurately the force with which it applies to all the parts of a complicated question. It is remarkable that the zeal of Mr. Hastings, not perhaps unnatural, to accuse his prosecutors, should have made him forget that the world would see and feel this distinction. Not only was a very intense process of thought necessary to determine with precision what should be done with every portion of so vast an aggregate of evidence; but the labour was immense to fix every portion, and that which was to be done with it, in the memory; a task which could not be BOOK VI. Chap. 2. 1794.performed till the very time arrived when the tongue was immediately to deliver what the memory contained.

Lord Stanhope, in his zeal for the defendant, moved the House to give notice to the Commons, that the Lords would proceed on the trial on Wednesday next. Lord Abingdon said, “to refuse the application of the Commons would bring a national censure on the House.” He asked, “Do your Lordships mean, by a side wind, or some other manœuvre, to get rid of this trial?” Lord Grenville, then rising, proposed an amendment, that instead of “Wednesday next,” these words should be inserted, “the second Tuesday in the next session of parliament.” After some explanation and debate, the amendment was carried by a majority of 48 to 21.1

The proceedings on the trial were resumed by the House of Lords, on Thursday the 13th of February, 1794, the one hundred and eighteenth day of the trial. The counsel for the defendant having requested to take the evidence of Lord Cornwallis, who had just arrived from India; and the managers having given their assent, not as to a right, but an indulgence, the Lords adjourned the trial to Wednesday next. “The delay,” says the historian of the trial, “was occasioned by complaisance to Lord Cornwallis, who, it was supposed, might want time to refresh his memory, with the perusal of official papers, before he appeared in the character of a witness in the impeachment.” This was an abundant allowance for refreshing the memory of a witness, compared with the time to which the Lords and the prisoner at their bar contended, at the conclusion of the preceding session, for restricting the managers in making ready for the reply. In consequence of the indispositionBOOK VI. Chap. 2. 1794. of the Noble Marquis, the trial was further postponed to the 24th, and then to the 25th of the same month; when it was announced on the part of the defendant, that, in consequence of the continued indisposition of Lord Cornwallis, he waved the benefit of his evidence. The managers expressed their readiness to permit his Lordship to be examined at any period during the remainder of the trial; and at the same time alluded to the arrival of another gentleman, Mr. Larkins, whose testimony, when it was not obtainable, Mr. Hastings had described as calculated to be of the utmost service to him, but, to their great surprise, showed no inclination to avail himself of it, now when it was at his command. Mr. Law said he disdained to accept for his client, as a boon, the power, which was his right, of adducing evidence at any period of his trial; that his client rested his defence upon the grounds already adduced, and was not accountable to any man for the motives which induced him to call or not to call any man as a witness. Mr. Law forgot, or wished his hearers to forget, that the question was not about accountability, but about evidence; whether by not calling Mr. Larkins, whose absence he had formerly deplored, he did not render the sincerity of that lamentation doubtful, and add to the circumstantial evidence against a cause, for the defence of which, so much artifice was employed: The proper business of Mr. Law would have been to show, if he could, that for such inferences, however natural, the fact of not calling now for the evidence of Mr. Larkins did not afford any ground.

The managers produced evidence to rebut the defence on the Benares charge. It had been stated, that if Mr. Hastings acted wrong in the demands which he made upon Cheyte Sing, Mr. Francis concurred BOOK VI. Chap. 2. 1794.with him. The managers proposed to call Mr. Francis, to show that he did not. The counsel for the defendant objected. They affirmed, that on the reply, the prosecutor was entitled to bring evidence for one purpose only; that of rebutting evidence adduced on the defence: If not for this purpose, it ought to have been given at first, to enable the defendant to meet it in his defence.—This was rather inconsistent with the doctrine of Mr. Law, when, alluding to the offer of the managers to permit the examination of Lord Cornwallis and Mr. Larkins, he claimed for his client a right to bring any evidence at any period of the trial. The objection about meeting such evidence, on the defence, might be answered, by granting, which would be due, a power of meeting new matter of crimination, by new matter of defence. The objection is, that this would tend to delay; but so it would, if the same matter had, in the first instance, been added respectively to the matter of crimination and that of defence; and it would always be a question, to be left to the court, whether the importance of the evidence was enough to compensate for the inconvenience and delay; and whether any thing sinister was indicated by giving it after, rather than before, the defence. Mr. Burke made a speech, in disparagement of the lawyers’ rules of evidence; which he said were very general, very abstract, might be learned by a parrot he had known, in one half hour, and repeated by it in five minutes; might be good for the courts below; but must not shackle parliament, which claimed a right to every thing, without exclusion, or exception, which was of use to throw light on the litigated point.

After a dispute, which lasted for the greater part of two days, the Commons were informed, that it was not competent for them to adduce the evidence proposed. Mr. Burke again complained bitterly ofBOOK VI. Chap. 2. 1794. the want of publicity in the deliberations which led to the decisions, and the ignorance in which the managers were held of the reasons on which they were grounded. It was thus impossible they could know before-hand whether a piece of evidence, which presented itself to them as important, would, or would not, be admitted by the Lords. This refusal of reasons was one of the causes of that delay, of which so many complaints had been raised. Lord Radnor having interrupted him, as arguing against a decision of the House, Mr. Burke said, “What he asked from the House was publicity in its decisions on questions of law, and a communication of the grounds on which it formed those decisions. He had condescended to ask this as a favour, when he might have claimed it as a right.“ Mr. Law said, he would not waste a moment of their Lordships’ time, in supporting a judgment of the House, which, being founded on a rule of law, wanted no other support. Mr. Burke replied, that “he had been accustomed to insolent observations from the counsel; who, to do them justice, were as prodigal of bold assertions as they were sparing of arguments.” Before the Court adjourned for deliberation, Mr. Hastings again addressed them, enumerated the miseries of delay, prayed for expedition, and, in particular, entreated their Lordships not to adjourn, as usual, on account of the absence of the judges during the circuit.

One of the reasons adduced by Mr. Hastings for the dethronement or deprivation of Cheyte Sing was the bad police of his country; to prove which, the outrages complained of by Major Eaton were adduced. The managers stated that “they would now produce a letter of Major Eaton’s, to show he did not consider the supposed irregularities worth inquiring into. The BOOK VI. Chap. 2. 1794.counsel for the defendant objected to the evidence. The House informed the managers, that the whole of the Benares narrative, and the papers annexed, having been given originally by the managers for the Commons, the evidence tendered was not admissible.” Be it so. But that does not hinder this from proving the existence of the letter, and the insignificance of the occurrences on which the plea of Mr. Hastings was erected.

As the defendant had produced in evidence the vote of thanks offered to him by the Court of Directors on the 28th of June, 1785; to rebut this evidence, the managers offered to produce a paper printed for the information of the proprietors, by order of the Court of Directors in 1783. This was vehemently resisted, not only by the counsel for Mr. Hastings, but by himself in person, as an ill-considered and intemperate act of a Court of Directors, who were his political enemies. “It was, therefore, (he said,) a species of unparalleled cruelty to bring it forward to oppress a man who had already suffered so much, for no other reason which he could divine, than having at a time of great public danger, effectually served his country, and saved India. He relied upon their Lordships’ humanity, honour, and justice, that they would not suffer this minute of the censure to be read; it being passed at a moment of intemperate heat and agitation, and utterly extinguished by a subsequent resolution.

“Mr. Burke rose as soon as Mr. Hastings had concluded, and contended that the paper was proper to be received, because it was an answer to a letter which the prisoner had dared to write to the Directors his Masters, and to print and publish in Calcutta.

“Mr. Hastings instantly rose, and said, ’My Lords, I affirm that the assertion which your Lordships have just heard from the Manager is false.BOOK VI. Chap. 2. 1794. I never did print or publish any letter in Calcutta that I wrote to the Court of Directors. I knew my duty better. That assertion is a libel; it is of a piece with every thing that I have heard uttered since the commencement of this trial, by that authorised, licensed’—(and after a long pause, he added, turning to Mr. Burke) ’Manager!’

“Mr. Burke continued to affirm that Mr. Hastings had printed and published the letter in Calcutta. Mr. Hastings loudly called out to him, it was not true; and the counsel said to Mr. Burke, No! no!”

The Lords adjourned, put the question to the judges, received their answer, and announced to the managers on a following day, “That it was not competent for the managers for the Commons to give in evidence the 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 November, 1783, and amended, and ordered by them to be published for the information of the proprietors—to rebut the evidence given by the defendant of the thanks of the Court of Directors, signified to him on the 28th June, 1785.” No decision is more curious than this. The same sort of evidence exactly, which the Lords allowed to be given for Mr. Hastings, they would not allow to be given against him; one proceeding of the Court of Directors, as well as another. It might have been said, that a prior decision of the same court was superceded by a posterior; but this should have been said after both were submitted to consideration, because it might be so, or it might not, according to the circumstances of the case.

On the 1st of March, the Lords not choosing to BOOK VI. Chap. 2. 1794.proceed without the assistance of the Judges, during their absence on the circuit, adjourned the court to the 7th of April. On the 6th of March, upon motion made in the House of Commons, by Mr. Burke, the managers were appointed a committee to inspect the journals of the House of Lords, and to examine into the made of procedure that was adopted on the trial of Warren Hastings, Esq.; and on the 17th of the same month, it was ordered, on the motion of Mr. Burke, that the managers should lay before the House the circumstances which have retarded the progress of the said trial, with their observations thereon.

On the 9th of April, which was the second day of the proceedings after the adjournment for the circuit, Lord Cornwallis was examined on the part of the defendant. His evidence contributed little to establish any thing. If it tended to confirm the views, held up by any one of the parties, more than those by another, it was rather those of the accusers than those of the defendant. On the alleged right of the government to call upon the Zemindars in time of war, for aids, over and above their rents, he made one important declaration, that no such aid had been demanded in any part of India during his administration.

As Mr. Hastings had declined, the managers thought proper, to call for the evidence of Mr. Larkins. The first questions which they put were intended to elucidate the letter which Mr. Larkins, upon the application of Mr. Hastings, wrote to Mr. Devaynes, in explanation of the dates of a part of the presents which Mr. Hastings had received. The counsel for the defendant objected; contending that, in reply, evidence, though of a witness till that time in India, could not be admitted to new matter, or matter which had not been contested; but only toBOOK VI. Chap. 2. 1794. points which had been disputed, or evidence which had been attacked. Mr. Burke again disclaimed the authority of the lawyers; and said, “the defendant was placed by these arguments in the most contemptible point of view. He had been specifically charged with bribery, sharping, swindling: From these charges, he had replied, that the testimony of Mr. Larkins, if he had it, would vindicate him: Mr. Larkins was now present: But the prisoner, instead of wishing to clear his fame, called for protection against the testimony to which he had appealed; and sought a shelter, not in his own innocence, but in a technical rule of evidence.” The Lords adjourned to deliberate, and when the court met on a future day, their Speaker announced, “Gentlemen, Managers for the Commons, and Gentlemen of Counsel for the Defendant, I am commanded by the House to inform you, that it is not competent for the managers for the Commons to examine the witness, in relation to a letter of the 5th of August, 1786, from the witness to William Devaynes, Esq. one of the Directors of the East India Company, produced as evidence in chief by the managers for the Commons.” Mr. Larkins was again called, and one of the first questions which were put was represented by the counsel for the defendant as falling under the same objection. But “so much, they said, had been uttered, about this testimony, and the motives of Mr. Hastings in resisting it, that any longer to forbear bringing these assertions to the test of proof, might perhaps seem to justify the insinuations which had been cast out against the defendant.” Relying, therefore, on the justice and humanity of the House to prevent the protraction of the trial, on this or any other account, BOOK VI. Chap. 2. 1794.to another year, they gave their consent to the examination of Mr. Larkins, on the same terms as if he had been examined at the first stage of the trial. This day the Court received another of Mr. Hastings’ addresses. Alluding to a report of an early prorogation of parliament, he conjured them to end his trial before the end of the session; affirming, “that human patience (meaning no disrespect to the Lords) could not sustain this eternal trial.” Next day, also, time passing away in disputes about the admissibility of the questions which the managers tendered to the witness, Mr. Hastings rose, and said that, if the Lords would but sit to finish the trial during the present session, his counsel should make no objection to any questions that might be asked. He then made a pathetic statement, recounting the offers which he had made to wave his defence, the actual relinquishment of part of it, and his other sacrifices to expedite the trial, among which he stated his consent to the examination of Mr. Larkins. He ended by praying that the court would sit on the following day, and permit that examination to be closed.

This was on the 16th of April. On the 17th Mr. Burke, in the House of Commons, brought up the report of the managers appointed to inquire into the causes of the delay in the trial of Mr. Hastings. An ample view of this important document is required. But it would interrupt too long the proceedings on the trial, and may be reserved till they are brought to a close.1 The lawyers, whom it desperately offended, because it spoke out, respecting their system, a greater than usual portion of the truth, argued against the printing of it; as in this, however, Pitt and DundasBOOK VI. Chap. 2. 1794. took part with the managers, the opposition of the lawyers failed.

The examination of Mr. Larkins was concluded on the 28th of April, having, together with the disputes to which it gave occasion, occupied the time of the court for rather more than three days. It had a tendency, but no more than a tendency, rather to clear than convict Mr. Hastings of any intention at any time to appropriate to himself any part of the presents, the receipt of which he afterwards disclosed; because the money, though entered in the Company’s books as money of Mr. Hastings, was not entered as such in the accounts kept of his private property by Mr. Larkins. The only new fact of any importance was, that a balance of the presents, received by Gunga Govind Sing for Mr. Hastings, was never paid to Mr. Hastings; who stated, with some marks of displeasure to Mr. Larkins, that Gunga Govind Sing pretended he had expended one lac of rupees, (10,000l.) during the absence of Mr. Hastings, in jewels, for a present to Mrs. Wheler, the wife of the member of council, upon whom, together with the Governor-General, the weight of administration at that time reposed.

Of the money which Mr. Hastings had desired to borrow of the Rajah Nobkissen, and which he said he had afterwards, upon the entreaty of the Rajah, accepted as a present, it appeared that Nobkissen had afterwards demanded payment, when Mr. Hastings had met the demand by what the lawyers call a set-off, or counter claim upon the demandant. Nobkissen had then filed a bill of discovery against Mr. Hastings in Chancery. The answer of Mr. Hastings was, that, as an impeachment was depending, he declined giving any answer at all. The BOOK VI. Chap. 2. 1794.managers proposed to give these proceedings in evidence. The lawyers of counsel for Mr. Hastings repelled them, as inadmissible. Mr. Burke was provoked to language scarcely temperate: “He was addressing,” he said, “a body of nobles who would act like nobles; and not as thieves in a night cellar: he could not suspect them of so foul a thing as to reject matter so pregnant with evidence: the notions of the Judges were not binding on the Lords: And the trial of Lord Strafford afforded an example to which, in this respect, he trusted they would always conform.” The Lords took the rest of the day to deliberate; and on their next return to the hall of judgment announced, “That it was not competent to the managers for the Commons to give in evidence the pleas put in by Warren Hastings, Esq., on the 14th of February and 25th of March, 1793, to the discovery prayed by a bill in Chancery, filed against him by Rajah Nobkissen on the 27th of June, 1792, touching a sum of three lacs of rupees, or 34,000l. sterling money, mentioned in the sixth article of charge.”

“As the counsel for the defendant had, on the Benares charge, the Begum charge, the charge of presents, and the charge of contracts, given evidence of the distresses of the country, as a justification, or excuse, of the irregular acts of extortion, oppression, bribery, and peculation, charged against the defendant in the articles of charge,” the managers proposed to prove, that the cause of these distresses was the misconduct of Mr. Hastings, plunging the Company into a war with the Mahrattas, neither necessary nor just. To this evidence the counsel objected, and the Lords resolved that it was not admissible. Abundance of angry altercation took place both before and after the decision; and Mr. Burke, in the pursuit of his object, a pursuit always eager, now, inBOOK VI. Chap. 2. 1794. some degree, intemperate, exposed himself at last to the imputation of pushing his examinations too far, of putting frivolous, when his stock of important, questions was exhausted, and contending long for points, either of no importance, or points in which he might see that he would not succeed. Yet, in these aberrations of a mind, which had now, to a considerable degree, lost the command of itself, a very small portion of time; not six, possibly not so much as three days, in the whole of this protracted business, were really misapplied by him, or fell to his share in distributing the blame of the unnecessary portion of delay.

Of the extraordinary proposition, to offer the injustice of the Mahratta war to rebut certain allegations of the defendant, Mr. Burke was probably the injudicious author. This was to bring a fact, to prove another fact, when the evidentiary fact was much more difficult of proof than the principal one; when the evidentiary fact was of such a nature, that it was either not susceptible of precise and conclusive proof; or opened so wide a field of inquiry, that the service it would render in the cause was evidently not a compensation for the trouble, which, in the shape of delay, expense, and vexation, it could not fail to create. This constituted a sufficient ground for the decision which, in this instance, was pronounced by the Lords. Mr. Burke, however, was so pertinacious, as to desire to enter against it a deliberate protest, which he tendered, in a writing of considerable length, and wished to have it entered upon the minutes. But the Lords informed him it could not be received.

After adducing evidence to several other points, the Commons offered matter to rebut the certificates, BOOK VI. Chap. 2. 1794.which had been presented in favour of the character and administration of the defendant, from several parts of India. They proposed to show, that these certificates could not be voluntary, because they were contradicted by the circumstances to which the people were reduced: And if so, these certificates were additional proofs of the atrocity, not of the beneficence, of the English government in India. Among other places, a certificate had arrived even from Dinagepore. To throw light upon this certificate, the managers offered to read the official report of an eminent servant of the Company, upon the government of this province. This was the famous document relative to the cruelties of Deby Sing. Its admission was again resisted on the part of the Defendant. Again the Lords decreed that it was not to be heard.

The evidence was closed on the 6th of May, which was the 129th day of the trial. The advocate for the defendant having confidently told the Lords, “that all the attempts which had been made in the present session to support the case of the prosecution had ended in producing an effect directly contrary; and that important conclusions, which could not have escaped their Lordships’ penetration, had resulted in favour of his client from the invaluable oral testimony lately given at their bar,” (alluding to the testimony of Lord Cornwallis and Mr. Larkins, which just as little established any thing in favour, as it did in crimination of Mr. Hastings): and having thus, with a well-timed artifice, assumed, without proof, and as standing in need of no proof, all that he wished to be believed; he added, that, in imitation of the former sacrifices to which, for the sake of lessening the delay, enormous, dreadful delay, the defendant had already submitted, he would make another sacrifice (which, if that was true which had just been asserted by the counsel, was no sacrifice at all), and wave his rightBOOK VI. Chap. 2. 1794. to make any observations on the evidence which had been offered in reply.

The managers then proceeded to sum up the evidence in reply; Mr. Grey, on the Benares charge, Mr. Sheridan on that of the Begums, Mr. Fox on the charge of presents, and Mr. Taylor on that of contracts. In this business seven days were consumed. Mr. Burke began the concluding speech on the 28th of May, and continued his oration nine days. After the third day, another petition was presented from Mr. Hastings to the House of Lords, which, as it is not very long, and not slightly impregnated with instruction, is here inserted.

“That it is with the greatest reluctance and concern that your Petitioner feels himself obliged once more to address your Lordships on the subject of his long-depending trial.

“Your Petitioner begs leave to lay before your Lordships his well-founded apprehensions, excited by the manner in which the general reply on the part of the managers is now evidently conducted, that such reply is meant to be extended beyond the probable limits of the present session of parliament.

“Your Petitioner hopes he may be allowed to bring to your Lordships’ recollection, that the reply was, at the instance of the managers, adjourned over from the last year, under the assurance of an accelerated and early termination of it; and that the whole of the present session, except a small interuption occasioned by the examination of the Marquis Cornwallis, has been employed by the honourable managers, not with standing that your Petitioner has, for the purpose of dispatch, in addition to the sacrifices made for a similar purpose in the last year, waved his right BOOK VI. Chap. 2. 1794.to observe, by his counsel, on the new evidence adduced in reply.

“Your Petitioner begs leave again to suggest to your Lordships the unexampled duration of his trial; the indefinite period to which it may be still further protracted; and the extreme vexation and injury to which he would be subjected, if the intention on the part of his prosecutors should be suffered to have effect.

“He implores, therefore, of your Lordships’ humanity and justice, that such measures may be adopted on the part of your Lordships, as may assure to your Petitioner the speedy termination of this painful and unparalleled proceeding; and further, if need should be, that your Lordships will graciously condescend, in such a manner as to the wisdom and dignity of your Lordships may seem meet, to become suitors to his Majesty’s goodness in his behalf, that the present sessions of parliament may be permitted to continue till the reply on the part of the honourable managers for the House of Commons shall be fully and finally closed.”

On the opening of the Court, on the first day after this petition to the House of Lords, Mr. Burke, says the historian of the trial, “began, by complaining in very strong terms, both of the Court, and of Mr. Hastings; of the latter for writing a most audacious libel, under the name of a petition; and of the former for having recorded it in their Journals. What the House of Commons would do, in consequence of this insult, he could not tell, as he had not had an opportunity of consulting the House upon it: he should, therefore, proceed as if no such libel had been written.”

Mr. Burke concluded his speech on the 16th of June. On the 20th, in the House of Commons, Mr.BOOK VI. Chap. 2. 1794. Pitt rose to move, “That the thanks of the House should be given to the managers appointed by them to conduct the prosecution against Warren Hastings, Esquire, for their faithful management in the discharge of the trust reposed in them.” The motion was seconded by Mr. Dundas. Mr. Pitt declared, that the magnitude and difficulty of the task which had been imposed upon the managers, and the ability and diligence with which it had been sustained, excited the strongest sentiments in their favour. Delay was the great source of complaint; but if the long intervals of the Court were excluded, and the number of hours were computed which had actually been bestowed upon the business of the trial, it would be found, compared with the quantity of matter essentially involved in the cause, by no means unreasonably great. “The next point,” he said, “to be considered was; of this time, whether great or small, how much had been occupied by the managers; and how much by the defendant, as well in the several replies, as by the unceasing and unwearied objections, taken on his part, to almost every thing offered on the part of the prosecution. To prove this disposition of objecting to evidence, gentlemen had but to look to the report made, by their committee, on the causes of delay. They would there find it proved.—It was, in the next place, to be recollected; that their managers had to discuss questions which they could not relinquish without abandoning the privileges of the Commons.—Upon all these grounds he would not allow that, if any unnecessary delay existed, any portion of it was chargeable to the managers for that House.”

Mr. Sumner, regretting the unusual necessity which made him vote against the minister, opposed the BOOK VI. Chap. 2. 1794.motion. He said, “he was happy to avow himself a very great admirer of Mr. Hastings; that he looked up to him with every sentiment of regard and affection;” professing at the same time, “that his objections to the present motion arose from circumstances, utterly independent of Mr. Hastings.” He excepted to the time of the vote, which, though not contrary to precedent, would have something of the effect of a pre-judging of the cause. However, he at last confessed, that he should have little objection to the vote, if it regarded only the rest of the managers without including Mr. Burke. Against him, he run forth into a long invective; his anger appearing to be directed against the strong terms of disapprobation, which Mr. Burke had scattered with a lavish hand, not only on Mr. Hastings, but all other individuals whom he regarded as partners either in his crimes or their protection. Mr. Wigley, and others, concurred with him in his observations. Mr. Wyndham, Mr. Francis, and Mr. Fox said, that many of the expressions, adduced by the Gentlemen, as the grounds of their opposition, were not correct: that they disclaimed the separation which had been made between them and their distinguished leader; and that it was affectation, and the affectation of weakness, to pretend disgust at the natural language of a strong indignation, when calling for punishment on crimes which the managers believed to have been committed, and to which, if they were committed, no language capable of describing them adequately could be found. Mr. Law, a servant of the Company, and brother of the Counsel for Mr. Hastings, made a speech against the coarseness of Mr. Burke, in such language as the following: “If any passage in his speech could be called sublime and beautiful; it was, at the best, but sublime and beautiful nonsense: At other timesBOOK VI. Chap. 2. 1794. his expressions were so vulgar and illiberal, that the lowest blackguard in a bear-garden would have been ashamed to utter them.” He was, indeed, surprised that a Right Honourable Gentleman (Mr. Fox) “should condescend to mix his character with that of the leading manager, whose follies and intemperance he had vainly endeavoured to correct. Whatever might be the abilities of the leading manager, he was totally unfit to conduct a public trial. His violence, his passion, and his obstinacy, were unconquerable. And as for his information,” said Mr. Law, “I was really astonished, that a man who had been twenty-two years employed in Indian inquiries, should still be so very ignorant of India. His prejudices had totally warped his judgment.”

Upon this latter point, the question was, whether it was Mr. Burke, or Mr. Law, who continued ignorant; and of which of the two it was that prejudices had perverted the judgment to the greatest extent. Mr. Law was very quietly making himself the standard of perfection; when, like so many of his brethren in India, he had hardly looked at a single object, except through the medium of prejudice; and had so little information about India, as, on the great objects, to be wrong in almost every opinion which he entertained.

The vote for the thanks of the House was carried by a majority of fifty to twenty-one. The Speaker, in addressing the managers, said; “That the subject to which their attention had been directed was intricate and extensive beyond example: That they had proved it was well suited to their industry and eloquence, the exertions of which had conferred honour, not on themselves only, but on that House, whose credit was intimately connected with their own.” BOOK VI. Chap. 2. 1795.Mr. Pitt moved that the Speaker do print his speech.1

No further proceeding was had on the trial till the next session of parliament. The 13th day of January, 1795, was the day on which the business was appointed to begin. On that day a committee of the Lords was formed, to inspect the journals, and to report on what they contained, respecting the mode of giving judgment on trials of high crimes and misdemeanours. The report was referred to a committee of the whole House, which began to deliberate on the 2d of March. Though, at the beginning of the trial, it had been determined by the Lords, that they should not proceed article by article, but that all the articles should be lumped together, both in the prosecution and the defence; it was now represented, by Lord Thurlow, who had before this time resigned the woolsack to Lord Loughborough, not only that they must not take, for decision, the articles all in the lump; but that it would be too much for their Lordships to take them even one by one; that it would be necessary, as several of the articles contained several allegations, to break these articles into separate parts, and to deliberate and decide separately upon each. How severe a condemnation this pronounced upon the former decision, by which the whole evidence was demanded in a lump, not one of their Lordships remarked; but they all agreed in the present propriety of that expedient for distinctness which they had formerly renounced and prohibited.

The procedure adopted by their Lordships was, to decide upon each point three times; first in a committee of the whole House; next in the House itself; and a third time as judges in Westminster-hall.BOOK VI. Chap. 2. 1795. Twenty-three questions were formed, upon those articles of impeachment to which the Commons had tendered evidence, and one upon the rest. Upon most of the questions, a debate of considerable length ensued. Lord Thurlow was the strenuous advocate of Mr. Hastings, upon all the points; and argued to show from the evidence that no criminal fact whatsoever was proved. Lord Loughborough, the Chancellor, took a different course, and argued to show that of the allegations to which the Commons had adduced their evidence, almost all were proved. It was not till the last day of March that the deliberations of the committee were closed, and their resolution upon each of the questions was pronounced. On all of them the vote passed in favour of Mr. Hastings. On the next day, when, agreeably to form, the resolutions were reported to the House, Lord Thurlow moved, that the resolutions reported be read one by one, and a question put upon each. The Lord Chancellor, and several other Lords, contended that this was a proceeding altogether nugatory, if not ludicrous; it was to vote the same questions, first on one day, and then on another, on no other account than a change of name; they were called the Committee the one day, the House the other; but no man was bound as a judge by the decisions either of the Committee or the House; though assuredly embarrassment would be thrown in the way of their determinations as a tribunal, by a reiteration of votes on the same subject, given when they were not a tribunal. The motion of Lord Thurlow was, nevertheless, carried, by a majority of fourteen to six; and the resolutions one after another obtained a second assent.

The business was not resumed till the 17th of April, when the form was determined of the questions which were to be put to the Lords individually in BOOK VI. Chap. 2. 1795.Westminster-hall. Some discussion occurred, and the questions, agreed upon, differed considerably from those, on each of which the House had passed a couple of preparatory votes. They proceeded to judgment on the 23d: when the questions were put and determined in the following mode.

“1. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged by the Commons in the first article of charge?

“George Lord Douglas (Earl of Morton in Scotland), how says your Lordship, Is Warren Hastings, Esq. guilty or not guilty, of the said charge?

“Whereupon Lord Douglas stood up, uncovered, and laying his right hand on his breast, pronounced—Not guilty, upon my honour.

“The Lord Chancellor then put the same question to all the Peers in robes, as follows:

“James Lord Fife, how says your Lordship?—Not guilty, upon my honour.

“Charles Lord Somers, how says your Lordship?—Not guilty, upon my honour.

“Francis Lord Rawdon (Earl of Moira in Ireland), how says your Lordship?—Not guilty, upon my honour.

“Thomas Lord Walsingham, how says your Lordship?—Not guilty, upon my honour.

“Edward Lord Thurlow, how says your Lordship?—Not guilty, upon my honour.

“Martin Lord Hawke, how says your Lordship?—Not guilty, upon my honour.

“Frederick Lord Boston, how says your Lordship?—Not guilty, upon my honour.

“Edwin Lord Sandys, how says your Lordship?—Not guilty, upon my honour.

“Henry Lord Middleton, how says your Lordship?—Not guilty, upon my honour.

“Samuel Lord Bishop of Rochester (Dr. Horsley), how says your Lordship?—Not guilty, upon myBOOK VI. Chap. 2. 1795. honour.

“John Lord Bishop of Bangor (Dr. Warren), how says your Lordship?—Not guilty, upon my honour.

“Thomas Lord Viscount Sidney, how says your Lordship?—Not guilty, upon my honour.

“George Lord Viscount Falmouth, how says your Lordship?—Not guilty, upon my honour.

“Henry Earl of Caernarvon, how says your Lordship?—Guilty, upon my honour.

“Joseph Earl of Dorchester, how says your Lordship?—Not guilty, upon my honour.

“Algernon Earl of Beverley, how says your Lordship?—Not guilty, upon my honour.

“Jacob Earl of Radnor, how says your Lordship?—Guilty, upon my honour.

“William Earl Fitzwilliam, how says your Lordship?—Guilty, upon my honour.

“George, Earl of Warwick, how says your Lordship?—Not guilty, upon my honour.

“George William Earl of Coventry, how says your Lordship?—Not guilty, upon my honour.

“John Earl of Suffolk, how says your Lordship?—Guilty, upon my honour.

“George Marquis Townshend, how says your Lordship?—Not guilty, upon my honour.

“Francis Duke of Bridgewater, how says your Grace?—Not guilty, upon my honour.

“Francis Duke of Leeds, how says your Grace?—Not guilty, upon my honour.

“Charles Duke of Norfolk, how says your Grace?—Guilty, upon my honour.

“David Earl of Mansfield, how says your Lordship?—Not guilty, upon my honour.

“William Lord Archbishop of York, how says your Grace?—Not guilty, upon my honour.

“Upon the remaining fifteen questions the Peers voted in the following manner:

“2. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged by the Commons in the second article of charge?—Guilty, six.—Not Guilty, twenty-three.

“3. Is Warren Hastings, Esq. guilty or not guilty of high crimes and misdemeanors, charged upon him by the Commons in the sixth article of charge, in so far as relates to the said Warren Hastings having in the years 1772, 1773, and 1774, corruptly taken the several sums of money charged to have been taken by him in the said years, from the several persons in the said article particularly mentioned?—Not Guilty, twenty-six.

“4. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged upon him by the Commons in the sixth article of charge, in so far as relates to his having, on or before the 26th of June, 1780, corruptly received and taken from Sadanund, the Buxey of the Rajah Cheit Sing, the sum of two lacs of rupees as a present or gift?—Guilty, four.—Not Guilty, twenty-three.

“5. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged upon him by the Commons in the sixth article of charge, in so far as relates to his having, in October, 1780, taken and received from Kelleram, on behalf of himself and a certain person called Cullian Sing, a sum of money amounting to four lacs of rupees, in consideration of letting to them certain lands in the province of Bahar in perpetuity, contrary to his duty, and to the injury of the East India Company?—Guilty, three.—Not Guilty, twenty-three.

“6. Is Warren Hastings, Esq. guilty, or not guilty,BOOK VI. Chap. 2. 1795. of high crimes and misdemeanors, charged upon him by the Commons in the sixth article of charge, in so far as relates to his having, in the year 1781, received and taken as a present from Nundoolol, the sum of fifty-eight thousand rupees?—Guilty, three.—Not Guilty, twenty-three.

“7. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged upon him by the Commons in the sixth article of charge, in so far as relates to his having, on or about the month of September, 1781, at Chunar, in the Province of Oude, contrary to his duty, taken and received as a present from the Vizir the sum of ten lacs of rupees?—Guilty, three.—Not Guilty, twenty-three.

“8. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged upon him by the Commons in the sixth article of charge, in so far as relates to his having first fraudulently solicited as a loan, and of his having afterwards corruptly and illegally taken and retained as a present or gift, from Rajah Nobkissen, a sum of money amounting to 34,000l. sterling; and of his having, without any allowance from the Directors, or any person authorized to grant such allowance, applied the same to his own use, under pretence of discharging certain expenses said to be incurred by the said Warren Hastings in his public capacity?—Guilty, five.—Not Guilty, twenty.

“9. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged upon him by the Commons in the fourth article of charge, in so far as relates to his having, in the year 1781, granted a contract for the provision of opium for four years, to Stephen Sulivan, Esq. without advertising for the same, and upon terms glaringly extravagant BOOK VI. Chap. 2. 1795.and wantonly profuse, for the purpose of creating an instant fortune to the said Stephen Sullivan?—Guilty, five.—Not Guilty, nineteen.

“10. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged upon him by the Commons in the fourth article of charge, in so far as relates to his having borrowed money at a large interest, for the purpose of advancing the same to the contractor for opium, and engaging the East India Company in a smuggling adventure to China?—Not Guilty, twenty-five.

“11. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged upon him by the Commons in the fourth article of charge, in so far as relates to the contract for bullocks granted to Charles Croftes, Esq.?—Guilty, three.—Not Guilty, twenty-three.

“12. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged upon him by the Commons in the fourth article of charge, in so far as relates to his having granted the provision of bullocks to Sir Charles Blunt by the mode of agency?—Guilty, three.—Not Guilty, twenty-three.

“13. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged upon him by the Commons in the fourth article of charge, in so far as relates to the several allowances charged to have been made to Sir Eyre Coote, and directed to be paid by the Vizir for the use of the said Sir Eyre Coote?—Guilty, four.—Not Guilty, twenty-two.

“14. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged upon him by the Commons in the fourth article of charge, in so far as relates to the appointment of James Peter Auriol, Esq. to be agent for the purchase of supplies for the relief of the Presidency of Madras, and all the other Presidencies in India, with a commission ofBOOK VI. Chap. 2. 1795. fifteen per cent?—Guilty, four.—Not Guilty, twenty-two.

“15. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors charged upon him by the Commons in the fourth article of charge, in so far as relates to the appointment of John Belli, Esq. to be agent for the supply of stores and provisions for the Garrison of Fort William in Bengal, with a commission of thirty per cent.?—Guilty, three.—Not Guilty, twenty-three.

“16. Is Warren Hastings, Esq. guilty, or not guilty, of high crimes and misdemeanors, charged upon him by the residue of the impeachment of the Commons?—Guilty, two.—Not Guilty, twenty-five.”1

On the 29th of May, at the desire of nine Proprietors, a General Court of the East India Company was held; at which two resolutions were passed, recommending that indemnification should be made by the Company to Mr. Hastings for the legal expences incurred by him in making his defence; and that, in consideration of his important services, and annuity of 5,000l. out of the territorial revenue should be granted to him and his representatives, during the term of the Company’s exclusive trade. Both questions were determined by ballot, one on the 2d, the other on the 3d of June. These proceedings BOOK VI. Chap. 2. 1796.were communicated to the ministers on the 24th of June; by whom the questions were referred to the law officers of the crown. Legal doubts existed whether, under the legislative appropriation of the Company’s revenues and profits, any fund existed from which the proposed allowances could be drawn. For a time the ministry showed no disposition to let the munificence of the Company obtain its effect. The application was not answered till the 13th of January, 1796; and then the answer was unfavourable, with respect to both parts of the donation. The question, however, did not rest. A negotiation was carried on between the Court of Directors, and the Board of Control. Finally on the 2d of March, it was announced at a General Court, that the Board of Control, and the Court of Directors, had agreed in the propriety of granting to Mr. Hastings an annuity of 4,000l. for twenty-eight years and a half, to commence from June 24th, 1785. Nothing as yet was determined respecting a re-imbursement of his law expenses, but, in order to relieve him from his present embarrassments, 50,000l. was lent to him, by the Company, without interest, for eighteen years.1

APPENDIX.

A short account of the spirit of this document, and of the principal matters which it contains, is of high importance. It is a criticism not only upon this trial, but upon the law; a thing in this country, of great rarity, from a source of high authority. It would also be a thing of great utility, if it would show the people of the country, what they have been carefully disciplined not to believe, that no greater service can be rendered to the community than to expose the abuses of the law; without which the hope of its amendment is for ever excluded. The view is incomplete, and but superficial, which Mr. Burke, who was the author of the document, takes, even of that small portion of the mass of abuses, of which he had occasion to complain. He neither stretched his eye BOOK VI. Chap. 2. 1794.to the whole of the subject, nor did he carry its vision to the bottom. He was afraid. He was not a man to explore a new and dangerous path without associates. Edmund Burke lived upon applause—upon the applause of the men who were able to set a fashion; and the applause of such men was not to be hoped for by him who should expose to the foundation the iniquities of the juridical system. In the case of public institutions, Mr. Burke had also worked himself into an artificial admiration of the bare fact of existence; especially ancient existence. Every thing was to be protected; not, because it was good, but, because it existed. Evil, to render itself an object of reverence in his eye, required only to be realized. Acutely sensible however to the spur of the occasion, he felt the abuses which crossed him in his path. These he has displayed with his usual felicity of language; and these, it is of importance with respect to the imitative herd of mankind to have stamped with the seal of his reprobation.

1. Under the first head of the report, an analysis was given of the duration of the trial, and of the causes to which that duration was owing. At that time the trial had occupied, though six years, only 118 days. Of these it appeared that in speeches, opening, and summing up, the managers consumed nineteen days; that in speeches, opening, and summing up, and his own addresses, the defendant and his counsel had consumed twenty-two days. In documentary and oral evidence fifty-one days were employed by the managers; and twenty-three on the part of the defendant. But, as the managers brought forward the case, they were under the necessity of adducing almost all the documents which bore upon the facts, and to interrogate almost all the witnesses from whom, on either side, any information could be derived. A great part of this evidence the defendant,BOOK VI. Chap. 2. 1794. at the time of his defence, had only to apply. Lastly, and chiefly, the greater part of the long and harassing contentions about the admissibility of evidence, took place during the fifty-one days which are set down to the account of the managers, but of which the greater part was consumed on account of the defendant.

“This last cause of the number of sitting-days,” said the report, “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 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.”

In the House of Commons, on the 11th of May, 1790, Mr. Burke affirmed, that the Lords sat on the trial in Westminster Hall not more than three hours a day on an average. Suppose in this statement some exaggeration; four hours is doubtless a large allowance. The number of hours, then, consumed in the trial was 472. If the court had acted constantly, and ten hours a day, (a well constituted judicature, during the continuance of a trial, would not account BOOK VI. Chap. 2. 1794.ten hours an excess) the trial of Warren Hastings, which lasted eight years, and occupied 145 days, might with all the technical obstructions have been begun, carried through all its stages, and finished, in little more than sixty days, or about two calendar months. When the defendant, therefore, and his counsel, took advantage of the disgraceful catalogue of years, to cast odium upon the managers, they were the cause of injustice. It is worthy at the same time of being observed, that it was the length of the trial of which he affected so bitterly to complain, and the horrid expense with which law proceedings are in this country attended, which by converting suspicion, and, in many cases indignation, into pity, rendered the termination of the trial so favorable to Mr. Hastings; which, if his acquittal, from the lips of his judges, would at any time have been equally sure, rendered; most undoubtedly, his acquittal, at the great tribunal of public opinion, much more complete; and which was the sole cause of the gratuities with which he was afterwards treated.

II. The relation of the ordinary, the law judges, to the court of parliament, the committee remarked upon, as a thing of great importance to fix and to understand. They had found their interference peculiarly hostile to all those ends of justice which the technical rules of procedure are calculated to obstruct. It was, therefore, the committee declared, agreeable to them, to find, upon inquiry, that the judges were nothing but servants; “that they neither had, nor of right ought to have, a deliberative voice, either actually, or virtually, in the judgments given in the High Court of Parliament;” and that their answers to questions are no further a guide to that court than it pleases to make them.

III. The committee set forward a principle which, in the capacity of managers, they had frequently urged in Westminster Hall; that the Lords were notBOOK VI. Chap. 2. 1794. bound by the Roman law, or that of any of the inferior courts in Westminster Hall; but only by the law of parliament. That they were not bound by the Roman, or English technical law, it might be very wise to maintain. But where was that law of parliament of which the committee spoke? It had no existence, any where; it was a mere fiction; spoken of, indeed, but never seen.—This is one of those important facts, its ignorance of which exposed the mind of Mr. Burke to much of the perplexity, confusion, and embarrassment, which it experienced upon this subject; and to much of the weakness and inconsistency, of which the lawyers were disposed to take a prompt and unsparing advantage. It was one of the grand foundations, too, of that imperfection of the House of Lords, as a criminal tribunal, whence those evils resulted, with complaints of which the nation was filled.

IV. The committee were not satisfied with showing, that the formalities in pleading, rigidly demanded in the ordinary courts of law, had been explicitly and solemnly determined to be unnecessary before the Lords; they were bold enough to proceed further in condemnation of the courts below, and to offer reasons for showing that some at least of the formalities of these courts were hostile, not conducive, to substantial justice.

It is necessary, for example, in an indictment, that a certain day be assigned for the commission of the fact. Yet on the trial it is sufficient to prove that it happened on any other day. In this, the committee said, there was “something ensnaring; the defendant having notice to answer for only one day, when the prosecutor has his choice of a number of days. They made also the following important remark, that the practice of the ordinary courts of law in England, is BOOK VI. Chap. 2. 1794.distinguished by “extreme rigour and exactness in the formal part of the proceeding, and extreme laxity in the substantial part:” That is to say, it is a practice well calculated for sacrificing the substance of justice, under the screen of attention to its forms.

But here also Mr. Burke found himself weak; and so did his opponents find him: because he knew not the ground upon which he stood. He was afraid to do more than carp, as detached instances, at one or two formalities, which he had found, in the case before him, might be employed for the obstruction of justice. And the lawyers overwhelmed him with assumptions to which it was the habit of his mind to submit. Had he seen far enough into the subject, to be able to denounce every thing merely technical in judicial procedure, every thing which falls not under the description of a simple and rational instrument of simple and rational inquiry, as a contrivance set up to impede the course of justice, and existing only for pernicious ends; the lawyers would have found that they had nothing beside their common-place fallacies by which they could oppose him.

V. On the question of publicity, the managers spoke with the greatest emphasis. They divided the subject into two parts; that relating to the publicity of the judges’ opinions; and that relating to publicity in general.

In taking the opinions of the judges in private, and defrauding the parties and the public of the benefit of their reasons, the committee complained, that the House of Lords had violated, at once, the obvious rules of natural justice, and the established law and usage of their own house. To show what was the law and usage of the High Court of Parliament a variety of precedents were adduced.

On the more general part of the question, it was the object of the committee to show, that the publicity of all the proceedings of the judges, and the statementBOOK VI. Chap. 2. 1794. of the reasons upon which all their determinations were founded, were so much the confirmed and undeviating practice in all other English courts of law, that “it seemed to be moulded in the essential frame and constitution of British judicature.”

It was also their object to show, that this great principle was indispensably necessary, both for preserving the public liberties of the country, and for securing to the people the benefits of law.

“It was fortunate,” they said, “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. Their reasons were publicly given; and the reasons assigned for their judgment took away all its authority.”

In regard to the benefits of law, they said; “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.” This the committee made out, by showing, that in respect to law the people of England are in a most dreadful situation. For the greater part of that which they ought to possess in the state of precise and accurate law, they have nothing but notes, taken by any body, of what has been done, without any better kind of law, in this, and the other instance, in the several courts. It followed of course, that, if you have no law beside these notes, and yet destroy your notes, you destroy also the law. “Your Committee,” said the report, “conceives, that the English jurisprudence has not any other sure foundation; nor consequently the lives and properties of the subject any secure hold; but in the maxims, rules, and principles, and juridical traditionary line of decisions, contained in the notes taken, and, from time to BOOK VI. Chap. 2. 1794.time, published, called Reports.” After the word “published,” the report says, “mostly under the sanction of the judges;” an expression that misleads, if it is understood to import any security taken by the judges, that they are correct: or even any knowledge the judges possess of what they are to contain.—Is not-this a shocking account of a state of law yet existing in a civilized country? It is here also fit, to insert a protest which was entered in the Journals of the Lords, against the innovation of secret deliberation and despotical mandates—mandates purely despotical, because mere expressions of arbitrary will.

“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 ofBOOK VI. Chap. 2. 1794. 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.

“(Signed) PORCHESTER,
SUFFOLK AND BERKSHIRE,
LOUGHBOROUGH.”

VI. The committee next showed, by irresistible evidence, that the House of Lords, by the questions which they had transferred to the decision of the judges, had subverted the usage of parliament, violated some of the most important of the privileges of the Commons, betrayed and relinquished their own judicial trust, and broken down one of the strongest bulwarks of the constitution.

On all former occasions, the judges were consulted by the Lords, not on the individual circumstances of the individual cause; but on some general question, within which the circumstances of the individual case might fall, and the application of which to those circumstances the Lords reserved to themselves.

“In the present trial,” says the report, “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 BOOK VI. Chap. 2. 1794.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.”

So much for the innovation: Now for the consequences of it.

“This mode strikes, as we apprehend, at the vital privileges of the House. For, with a single exception, the case being stated, the questions are raised directly, specifically, and by name, on these 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.”

Such were the effects upon the Privileges of the Lords, and the Commons. Let us next observe what they were upon objects of much greater importance.

“The operation of this method is, in substance, not only to make the judges masters of the wholeBOOK VI. Chap. 2. 1794. process and conduct of the trial; but, through that medium, to transfer to them the ultimate judgment of the cause itself and its merits.

“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.

“It tends wholly to take away from the Commons the benefit of making good their case before the proper judges, and submits 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 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 misdemeanour 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 inconveniences 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 BOOK VI. Chap. 2. 1794.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, of 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 at any time find it 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; and having once assumed the rule of proceeding and practice below as their rule, they must at every instance resort, for their means of judging, to the authority of those whom they are appointed to judge.”

On the side of judicature, then, the people were left without a remedy. The Lords, by nullifying themselves, took away every legal check upon the iniquity of judges, because the judges could only be tried before the Lords, and to be tried before the Lords was to be tried by themselves.

For the departure from the ancient practice of framing a general question, within which the particular point in doubt was comprehended, to the new and extraordinary practice of sending the particular point itself to the judges, before whom the cause and its evidence was not brought, two possible causes are assignable. First; Talent, and the exercise of talent, were necessary to the framing of general questions; but talent was possibly scarce, and the labour ofBOOK VI. Chap. 2. 1794. thought undoubtedly painful. Secondly; General rules, framed to embrace the particular instances, decided as they were by the judges, would, in many cases, not have borne to be expressed; their efficacy, in corrupting the administration of justice, would have been sufficiently visible, to excite the indignation of the world.

They would have been seen to be, what, by the committee, they were declared to be, “of a tendency to shut up for ever all the avenues to justice;” to operate as “a means of concealment;” “to render the process of judicature, not the terror, but the protection, of all the fraud and violence arising from the abuse of power;” and, united with “private, unargued judicial opinions, to introduce, by degrees, the miserable servitude which exists where the law is uncertain or unknown.”

“A miserable servitude exists wherever the law is uncertain or unknown.” Such was the opinion, solemnly pronounced, on a very important occasion, by the assemblage of great men by whom this trial of Warren Hastings was conducted. Does any man dispute its truth and importance? After this acknowledgment, did the managers reflect how dreadfully uncertain law must be, in that country where it has nothing for its foundation, but the notes taken by casual individuals, of the incidents which happen in this and that individual case? Did they reflect, to how dreadful a degree law must be unknown, in that country, in which it is so voluminous and obscure, that the longest life of the most ingenious lawyer, according to the lawyers themselves, is not sufficient to learn completely even one of its parts. It is necessary to add, how great a portion of this miserable servitude is, therefore, the curse and the BOOK VI. Chap. 2. 1794.disgrace of the country, among the legislators of which these managers themselves were found?

VII. The committee made a dissertation of considerable value upon the rules of evidence, or rather the rules for exclusion of evidence. Even here, however, the author of the report saw his way but obscurely. He perceived distinctly, that every one of the rules of exclusion, which had been brought to bear against himself, was mischievous, and opposed to the course of justice in that particular application of it. But he did not ascend to the principle of exclusion itself; and perceive that generically it was pregnant with nothing but mischief. The mind of Mr. Burke was not a generalizing mind. It rested upon individual cases; had little native propensity to ascend any higher; and seldom did so, unless when impelled by unusual circumstances.

The committee begin with stating to the House of Commons, and to the world, a most important fact. They had been informed, before the trial began, that use would be made of the rules of evidence to obstruct them. That is to say, the knowledge existed, and was capable of being turned to practical account, that the laws of evidence were useful to protect a criminal; because it was not yet known whether Hastings was criminal or not criminal; but it was perfectly known, it seems, that, in either case, the laws of evidence would be effectual to obstruct his prosecutors. And, happily, the power of obstructing justice, which English law thus puts into the hands of her professors, received a memorable and flagrant illustration, on the trial of Warren Hastings.

The committee first observe, that if the rules for excluding evidence were of advantage in questions which related to men of our own country, and to private transactions, they were altogether inapplicable, in questions, which related “to a people separatedBOOK VI. Chap. 2. 1794. from Great Britain by a very great part of the globe, separated by manners, by principles of religion, and by inveterate habits as strong as nature itself, still more than by the circumstance of local distance;” and questions which related to men, “who in the perpetration and concealment of offences, have 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 author of the report lays down the principle of evidence, with more than his usual comprehensiveness, in the following words: “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.” Yet, after laying down this important proposition, the author seems to have known little of its value; for he makes hardly any use of it, but goes immediately to challenge his adversary, on the score of precedent and practice; though he had made the committee expressly declare, that where not “founded on the immutable principles of substantial justice, no practice, in any court, high, or low, is proper, or fit to be maintained.”

The committee proceeded to lay before the House and the world, the result of a careful research, which they professed to have made into the subject of legal technicalities, or “those supposed strict and inflexible rules of proceeding and of evidence, which appeared to them,” as they affirmed, “destructive of all the means and ends of justice;” a declaration more firmly grounded than even they were aware; BOOK VI. Chap. 2. 1794.and of which their country has not yet been wise enough to profit.

They gave an account of the doctrine of evidence, as it had been manifested in the proceedings of the high court of parliament, as it existed in the civil or Roman, and as it existed in English law. The inference presented was, that on the trial of Mr. Hastings, the Lords, in the leading-strings of the judges, went beyond the law of parliament, beyond the civil, and beyond even the English law, in their rejections of evidence.

Reflecting upon the history of English law, which for a series of years had been relaxing the ceremonial of barbarous times, and always most rapidly in the hands of its most enlightened professors, the committee presented a most important historical and philosophical fact; That an overlaboured devotion to forms, at the expense of substance, is the bent of a rude age; and of a rude mind, in all ages.

The committee, having produced a number of the most remarkable instances they could find, in which the judges had violated the formalities of law in order to preserve the substance of justice, exhibited the following brilliant eulogium on the courts of law: “It is with great satisfaction your committee has found, that the reproach of disgraceful subtleties, of 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.”

This was to draw a general rule from the induction of a small and insufficient number of particulars, agreeably to the mental habit of Edmund Burke. He had exhibited a certain number of instances, in whichBOOK VI. Chap. 2. 1794. the formalities of law had been made to yield to the claims of justice. He might have exhibited a much greater number, in which the claims of justice had been made to yield to the formalities of law. Mr. Burke seems to have been perfectly ignorant of a great and pervading principle of English law, which may be called the principle of duplicity. On occasions, so numerous as to extend over a great part of the whole field of law, English judges are provided with two grounds, on which they may erect their decisions; two opposite grounds, by means of which they may, upon the same question, make choice of any one of two opposite decisions which they please; and still be in the right. They may follow the rule of rational justice, and the genuine merits of the case, without regard to the formalities of law: In that instance, they are clothed with the praise of liberality. They may adhere to the formalities, and disregard the substance of the case: In that instance they are decorated with the praise of a zeal for the law, for that steadiness and fixity in the rules of law on which the usefulness of them mainly depends. This power of deciding, either on one side or another, just as they please, is arbitrary power; and, as far as it extends, renders the Judges completely, and uncontrolably, despotic. They may do whatever they please. They may favour justice, if they have an inclination for justice. They may violate justice, if they have any end to serve by the violation. In the one case they are safe, on pretence of justice: in the other they are safe, on pretence of law.

VIII. After some general observations on the nature and importance of circumstantial evidence, the committee stated that the Lords had, on this occasion, pursued a course, not only unsupported by any practice BOOK VI. Chap. 2. 1794.of their predecessors, and in hostility with the practice of the Courts below; but a course which appeared to the committee “totally abhorrent from the genius of circumstantial evidence, and mischievously subversive of its use.”

“As proof by circumstantial evidence rarely, if ever,” says the report, “depends upon 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, Esq. (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 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 any thing which can destroy this collective effect, is to deny circumstantial evidence.”

The following was another pertinent remark. “Your committee 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. 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.”

IX. The committee complained that the Lords had made it a ground of exclusion, if a question was put on the cross-examination, not on the examination inBOOK VI. Chap. 2. 1794. chief; or if an article of evidence was tendered on the reply, not in the first stage of the prosecution. They entered into a long argument to show, that this conduct, as it was unfavourable to the discovery of truth and correct decision; so it was unsupported by any thing in the law or practice of the courts.

X. The committee, last of all, commented upon the defence set up for this rejection of evidence; that it corresponded with the practice of the Judges in trying offences under commissions of oyer and terminer. They made a distinction between common jurymen, bound to give their verdict at one sitting, and the peers of parliament, possessing all the time for deliberation which the case might require. They allowed, with flagrant inconsistency, that exclusion might be very wise and good, when it was common jurymen who were to decide upon the case; contended that it was very noxious when the Lords of Parliament were to decide; as if common jurymen were capable of deciding accurately and justly upon the merits of a case, with evidence not complete; the Lords of Parliament were not capable! As if the way to prevent ignorance from deciding wrong was to withhold information! As if a man with imperfect eyes were expected to find his way best in the dark! Assuredly, if an ignorant man is called upon to make a decision, the way to obtain a correct one is not to deprive him of information on the subject, but to give him all the information in your power, and instruct him, as completely as you can, what degree of influence each article of information intrinsically possesses towards proving the matter in dispute.

This unprecedented exposure of abuses in the law, and of the advantage made of those abuses, by the BOOK VI. Chap. 2. 1794.professors of the law, excited the highest indignation among those professors. Lord Thurlow, at the head of them in point of weight, and almost at the head of them also in impetuosity of temper, broke out, on an early occasion, with the flames which were kindled within his breast.

In a debate which took place in the House of Peers, on Thursday, May 22, on the bill for allowing government to take up and confine for a limited time persons suspected of treasonable or seditious practices, Lord Thurlow in his speech mentioned “a pamphlet which his Lordship said was published by one Debrett in Piccadilly, and which had that day been put into his hands, reflecting highly upon the Judges and many Members of that House: it was disgraceful and indecent; such as he thought never ought to pass unpunished. He considered that vilifying and misrepresenting the conduct of Judges and Magistrates, entrusted with the administration of justice and the laws of the country, was a crime of a very heinous nature, 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 when it was stated to the ignorant and wicked, that their Judges and Magistrates were ignorant and corrupt, it tended to lessen their respect for, and obedience to, the laws of their country, because they were taught to think ill of those who administered them.”

We may here observe one of the most remarkable of the expedients of the lawyers. What they have laboured from an early date to create and establish in the minds of their countrymen is—a belief, that it is criminal ever to express blame of them or their system. This endeavour has hardly been less diligent than it has been successful. The belief has grown into one of the most rooted principles in the minds ofBOOK VI. Chap. 2. 1794. the more opulent classes of Englishmen. That it is one of the most pernious prejudices is indisputable. For it is obvious, that it confers upon the lawyers, as far it goes, a complete and absolute license to make the system of which they are the organs, and upon which all the happiness of society depends, as favourable to their own interests, at the expense of those of the community, as ever they please. It is, therefore, a belief artificially created by the lawyers, for the protection of their own abuses; and will never be allowed to retain a place in the mind of any enlightened and disinterested man. The grand remedy for the defects of government is, to let in upon them publicity and censure. The grand remedy for the misconduct of the members of government is, to let in upon it publicity and censure. There are no abuses in the exposure of which society is more interested than those of the law. There is no misconduct in the exposure of which it is more interested than that of the lawyers.

The first thing observable in the speech of this great lawyer is the fiction, under which he speaks of the report of a committee of the House of Commons. It was a pamphlet published by one Debrett. The regulations of parliament required, that notice should not be taken in one of the Houses, of any thing done in the other. The speech of the great lawyer, then, was a flagrant violation of that rule; for the whole purport of it was to arraign the matter of the writing, which was the production of the House of Commons, not the mere act of publication, in which alone Debrett was concerned. A rule that can be set aside by a fiction, that is, by a declaration more or less false, adapted to the purpose, is not a rule that BOOK VI. Chap. 2. 1794.is good for much, as it will never be in substance regarded when any one has a motive for breaking it.

The vindictive Judge here speaks of two things, vilifying, and misrepresenting. If he meant to say, that the report of the committee of the House of Commons had misrepresented any thing done by the Judges, of either of the two descriptions, concerned in the trial of Mr. Hastings; it is not true. He could not have mentioned a single fact which was not justly stated; nor a single censure, with respect to which, the fact against which it was pointed, and the reasons for which it was applied, were not both of them distinctly assigned. Nothing could be farther from misrepresentation than this.

Further, the offended Judge speaks of two things, vilifying, and misrepresenting, as if they were one and the same thing; and thereby creates a deceitful, and mischievous confusion. Misrepresenting, which is conveying a false conception of another man, is always bad. It may or it may not imply guilt, according to the state of the mind from which it issued. But all means should be employed both to prevent its existence, and to provide a remedy for its effects. Vilification is a very different thing; and is subject to very different laws. Vilification, as distinct from misrepresentation, is the conveying a true character of a bad man. The case is not easy to be conceived, in which that is not good for society. There can be no case, in which to publish the true character of a bad ruler is not good for society. There can be no case, in which to publish the true character of a bad Judge is not pre-eminently beneficial to society.

Observe the slight of hand, with which the artificer endeavours to pass his counterfeit coin. Vilification, and misrepresentation, are both spoken of, as theBOOK VI. Chap. 2. 1794. same thing. Misrepresentation is unquestionably bad; and vilification being shuffled in, under the same cover, is spoken of as bad also. And then comes the doctrine, delightful to the lawyer, that to speak with censure of the dignitaries of the law, on any occasion, or in any shape, is the height of criminality; and that “to reflect,” as they call it, upon the Judges, that is, to make just remarks upon ill behaviour, “ought never to pass unpunished.“ It is very natural for Judges to preach punishment for all “reflection” upon Judges. But what is the consequence with respect to the unhappy community? To ensure to the Judges a power of gratifying and aggrandizing themselves at their expense: the power, in short, of making and keeping the law, an instrument, to any extent which they please, not of justice, but oppression.

Hear the plea of the lawyer, in behalf of his mischievous claim. To make known, says he, the offences of great men of the law would “diminish respect for, and obedience to the laws.” That is to say: When laws and the administration of them are made good, they will not be respected: When they are bad, if you only say nothing about their badness, and allow the lawyers to praise the badness as if it were goodness, you will then have perfect respect and obedience. Who but those who have rendered up their understandings to the will of the deceivers, can believe this wretched misrepresentation of the human mind? It requires pains and trouble, cunningly and perseveringly applied, to make people in love with that which hurts them; leave them only to the operation of nature, and that which does them good will of itself engage their affections. If half the pains were taken to make the people see the excellence of good laws, BOOK VI. Chap. 2. 1794.that have been always taken to prevent them from seeing the wickedness of bad laws, an obedience such as the world has never yet beheld, and never can behold, till that righteous course is adopted, would be the consequence, ensured, with the certainty of the laws of nature.1

[1]Take the following account, from the publication entitled, Trial of W. Hastings, Esq. &c. p. 1.—“Previous to their Lordships’ approach to the Hall, about eleven o’clock, her Majesty, with the Princesses Elizabeth, Augusta, and Mary, made their appearance in the Duke of Newcastle’s gallery. Her Majesty was dressed in a fawn-coloured satin, her head-dress plain, with a very slender sprinkling of diamonds. The royal box was graced with the Duchess of Gloucester and the young Prince. The ladies were all in morning dresses; a few with feathers and variegated flowers in their head dress, but nothing so remarkable as to attract public attention.

“Mrs. Fitzherbert was in the royal box.

The Dukes of Cumberland, Gloucester, and York, and the Prince of Wales, with their trains, followed the Chancellor, and closed the procession.

Upwards of 200 of the Commons, with the Speaker, were in the gallery.

The Managers, Charles Fox and all, were in full dress.

But a very few of the Commons were full dressed—some of them were in boots. Their seats were covered with green cloth—the rest of the building was “one red.”

Mr. Hastings stood for some time—On a motion from a Peer, the Chancellor allowed, as a favour, that the prisoner should have a chair—And he sat the whole time—but occasionally, when he spoke to his Counsel.

His Counsel were Mr. Law, Mr. Plomer, Mr. Dallas.—For the Commons—Dr. Scott and Dr. Lawrence; Messrs. Mansfield, Piggot, Burke, and Douglas.

A party of horse-guards, under the command of a Field Officer, with a Captain’s party from the horse-grenadiers, attended daily during the trial.

A body of 300 foot-guards also kept the avenues clear, and a considerable number of constables attended for the purpose of taking offenders into custody.”

[1]The words of the quotation are taken from the short account of the speech which is given in the History of the Trial of Warren Hastings, Esq. published by Debrett. The account, though short, is the best which I have been able to procure. The report to which I have had access, in the MS. of the short-hand writer, is exceedingly confused, and indistinct. Upon this passage, the compiler of the History of the Trial adds in a note, “In this part of his speech Mr. Burke’s descriptions were more vivid—more harrowing—and more horrific—than human utterance on either fact or fancy, perhaps, ever formed before. The agitation of most people was very apparent—and Mrs. Sheridan was so overpowered that she fainted.

On the subject of the Ministers of these infernal enormities, he broke out with the finest animation!

’My Lords,’ exclaimed Mr Burke, ’let me for a moment quit my delegated character, and speak entirely from my personal feelings and conviction. I am known to have had much experience of men and manners—in active life, and amidst occupations the most various! From that experience, I now protest—I never knew a man who was bad, fit for service that was good! There is always some disqualifying ingredient, mixing and spoiling the compound! The man seems paralytic on that side! His muscles there have lost their very tone and character!—They cannot move! In short, the accomplishment of any thing good, is a physical impossibility for such a man. There is decrepitude as well as distortion—he COULD NOT if he would, is not more certain, than he WOULD NOT, if he could!’

Shocking as are the facts which Mr. Burke related, and which he says he finds recorded in the account taken by Mr. Patterson, who was appointed Commissioner to inquire into the circumstances of this dreadful business, and of a rebellion which took place in consequence, Mr. Burke says, of the above-mentioned cruelties; our readers must see that Mr. Hastings cannot be responsible for them, unless it shall be proved that he was privey to, and countenanced the barbarities.”

[1]MS. ut supra.

[1]Minutes of the Trial of Warren Hastings, MS. The reader may however consult the printed History, ut supra, which differs in nothing material from the original document in my hands.

[1]For a specimen of just, ideas on this, and other parts of the subject of evidence, see an unfinished work, entitled, “Rationale of Evidence by J. Bentham, Esq.” For a complete elucidation, the public must wait for that more voluminous production, which he announced as nearly prepared, so long ago as in the first edition of the Letters to Lord Grenville on Scotch Reform.

[1]Minutes of the Evidence taken at the Trial of Warren Hastings, Esq., p. 321.

[1]Minutes of the Trial of Warren Hastings, Esq. MS. of the shorthand writer.

[2]Ibid. twentieth day.

[1]Letter, dated 28th of August, 1771; Minutes, ut supra, 973.

[1]See a letter, dated 30th September, 1765, from the President Lord Clive and Council, in which her son by the Nabob is treated as a bastard. Minutes, ut supra, p. 976.

[1]President’s Minute in Consultation, 28th July, 1772. Minutes of Evidence, ut supra, p. 973–976.

[1]Minutes, ut supra, p. 978–980.

[1]The circumstances respecting the proposal to produce this letter, and the decision upon it, appear more distinctly in the Hist. of the Trial of Warren Hastings, Esq. part ii. p. 57, than in the Minutes of Evidence, where there is obscurity, and probably an omission.

[1]With respect to Mr. Hastings personally, I am anxious to observe, that this affords a presumption of innocence; at least of the truth of his allegation, that the sum in question, which was given him for entertainment money, as he had never denied it, so he never meant to conceal.

[1]The expressions are here taken from the report of the speech, in the History of the Trial, ut supra, part ii. p. 64. Mr. Burke, on this occasion, took pointed notice of a circumstance of some importance in the history of the public life of Mr. Hastings. Having warned the Lords of the wide door they laid open for the escape of guilt, by sustaining the disavowals which the guilty found it convenient to make; “In the case of Mr. Hastings, he said, there appeared to be a system of disavowals. The prisoner once appointed an agent, who, in his name, made a formal resignation of the Government of Bengal. But the principal afterwards disavowed this act of his agent, and strenuously resisted it, though the ruin of the British empire in the East might have been the consequence of it.

“At another time he delivered at the bar of the House of Commons, (as his own) a written defence against the charges then pending against him in that House. But afterwards at their Lordships’ bar, he disavowed this defence, and produced evidence to prove that it had been drawn up by others, and not by himself, and that, therefore, he ought not to be accountable for the contents of it.

“In the case immediately before their Lordships, it had appeared in evidence, that Major Scott was the agent of the prisoner, and that his powers were as unlimited as words could make them, except in one point only. This agent delivered to the Committee of the House of Commons, the papers of which he was then speaking; certainly with some view, and probably to serve his principal, for he delivered them unasked. But now he disavowed all authority for such delivery.”

[1]History of the Trial, ut supra, part ii. p. 62.

[1]History of the Trial, ut supra, part ii. p. 62, 63.

[1]See the Minutes of Evidence, ut supra, p. 953–1101, with the History of the Trial, ut supra, part ii.

[1]The whole of this scene, us given by the historian of the trial, is curious, and forms an important incident in the History of Mr. Hastings.

“Mr. Burke said, that he must submit to their Lordships’ decision, but he must say, at the same time, that he had heard it with the deepest concern: for if ever there was a case in which the honour, the justice, and the character of a country were concerned, it was in that which related to the horrid cruelties and savage barbarities exercised by Deby Sing, under an authority derived from the British Government, upon the poor forlorn inhabitants of Dinagepore; cruelties and barbarities so frightfully and transcendently enormous and savage, that the bare mention of them had filled with borror every description of people in the country.

“The impression that even the feeble representation which his slender abilities had been able to produce had made upon the hearts and feelings of all who had heard him, was not to be removed but by the evidence that should prove the whole a fabrication.—The horror which the detail of those cruelties had produced in the minds of all classes of people was indescribable; the most dignified ladies of England had shuddered, and some had fainted at the bare recital; and was no evidence now to be received to prove the existence of those acts of barbarity which had shocked the whole nation?

“Mr. Law said, it was not to be borne, that the Right Hon. Manager should thus proceed to argue in reprobation of their Lordships’ judgments solemnly given.

“Mr. Burke said, nothing could be further from his intention than to reprobate any decision coming from a Court for which he entertained the highest respect. But he was not a little surprised to find, that the learned Counsel should stand forth the champion for their Lordships’ honour;—they were themselves the best guardians of their own honour; and it never could be the intention of the Commons to sully, much less to call in question, the honour of the House of Peers. As their co-ordinate estate in the Legislature, the Commons were perhaps not less interested than their Lordships themselves in the preservation of the honour of that noble House; and therefore he never could think of arguing in reprobation of any of its decisions.

“But the truth was, that the decision upon which he was then speaking was not upon a question put by the Commons: the Lords had no doubt decided properly; but it was certainly upon their own question, and not upon that of the Commons. If the Commons had been suffered to draw up their question themselves, they would have worded it in a very different manner, and called for the judgment of the House upon a question very differently stated from that on which the decision had just been given.

“It was true that the cruelties charged in the article were not stated, eo nominc, to have been exercised by Deby Sing; but the article charged Mr. Hastings with having established a system which he knew would be, and in point of fact had actually been, attended with cruelty and oppression.—The article did not state by whom the acts of cruelty had been committed, but it stated cruelty in general; and of such cruelty, so charged, the managers had a right to give evidence.

“He observed, that their Lordships must perceive a difference in the case thus stated, from that which they had stated themselves, and on which they had decided. He begged, therefore, that they would consider seriously what effect this decision would have upon this part of the article, and upon the general character of the country.

“If they were entirely to shut out all evidence of those acts of cruelty, what would the world say? what would be the opinion of mankind? It would astonish the surrounding nations, that the door should be shut upon the proof of cruelties, the bare recital of which had barrowed up the souls of all who had heard it. The character of the nation would suffer, the honour of their Lordships would be affected, if, when the Commons of England stood ready to prove the existence of barbarities that had disgraced the British name, and called for vengeance on the guilty heads of those who were in any degree instrumental in them, they should be stopped, and told that no evidence could be received in proof of those barbarities. A Noble Lord, deservedly high in the opinion of his Peers, had said, when he heard those savage cruelties detailed, that, compared with the enormity of them, all the articles of the impeachment weighed not a feather; that if the detail was founded in truth, no punishment could be too severe for whoever should be found to have had any part in exercising them.

“The same Noble Lord, Mr. Burke observed, had said, that if the Hon. Manager did not make good this most horrid of all charges, he ought to pass for the most daring calumniator.

“Upon that issue, said Mr. Burke, I am ready to put my character: suffer me to go into the proofs of those unparalleled barbarities; and if I do not establish them to the full conviction of this house and of all mankind, if I do not prove their immediate and direct relation to, and connection with the system established by Mr. Hastings, then let me be branded as the boldest calumniator that ever dared to fix upon unspotted innocence the imputation of guilt.”

“Earl Stanhope called Mr. Burke to order. His Lordship said, that the time of the House must not be wasted in arguments upon questions on which their Lordships had already decided.”

“Mr. Burke said, that it was his object to save the HONOUR and the CHARACTER of their Lordships, and not their TIME: and it could not have entered his head, that whilst he was pursuing so great an object, he could be supposed to be wasting their TIME, which, though certainly precious, could not weigh a feather against their HONOUR and CHARACTER.

“However, let that be as it might, he had done: he had endeavoured to rescue the character and justice of his country from obloquy; if those who had formerly provoked inquiry, if those who had said that the savage barbarities which he had detailed had no other existence than that which they derived from the malicious fertility of his imagination, if those who had said that he was bound to make good what he had charged, and that he would deserve the most opprobrious names if he did not afford Mr. Hastings an opportunity of doing away the impression which every part of the nation had received from the picture of the savage cruelties exercised by Deby Sing; if, he repeated, they now shrunk from the inquiry for which they had before so loudly called, if they now called upon their Lordships to reject, and not listen to the proofs which they before had challenged him to bring, the fault was not with him; he had done his duty to his country, whose honour and justice had been outraged; to the House of Commons, who had sent him to their Lordships’ bar to express their abhorrence of cruelties, and to point the vengeance of the law against those who had been instrumental in practising them; and he had done what he owed to himself, in offering to prove all that he had advanced on the subject, on pain of being branded, if he should fail in his proofs, as a bold and infamous calumniator.—’Upon the heads of others therefore (said he), and not upon those of the Commons of Great Britain, let the charge fall, that the justice of the country was not to have its victim. The Commons have shown their readiness to make good their charges.—But the defendant shrinks from the proof, and insists that your Lordships ought not to receive it.’

“Mr. Law, with unexampled warmth, whether real, or assumed in consequence of instructions in his brief, we cannot pretend to say, replied to Mr. Burke. He said that the Right Hon. Manager felt bold, only because he knew the proof which he wanted to give could not be received; that, from the manner in which the charge was worded, their Lordships could not, if they would, admit them, without violating the clearest rules and principles of law. ’But (said he) let the Commons put the detail of those shocking cruelties into the shape of a charge which my client can meet, let them present them in that shape at your Lordships’ bar, and then we will be ready to hear every proof that can be adduced. And if, when they have done that, the Gentleman for whom I am now speaking does not falsify every act of cruelty that the Honourable Managers shall attempt to prove upon him, Maythe hand of thisHouseand the hand ofGodlight upon him!’

“After this ejaculation, delivered in a tone of voice not unlike that of the theatric hero, when he exclaims, ’Richard is hoarse with calling thee to battle!’—this part of the business ended.” History of the Trial of Warren Hastings, Esq. part iii. p. 54–56.

Beside what Mr. Burke had thus declared, Mr. Fox, in the speech in which he summed up the evidence on this article, said, “The Counsel for the defendant had, upon this subject, invoked the judgment of their Lordships, and the vengeance of Almighty God, not on their own heads, but on the head of their client, if the enormities of Devy Sing, as stated by his Right Hon. Friend, should be proved and brought home to him. He knew not how the defeudant might relish his part in this imprecation which the Counsel had made; but in answer to it, if the time should come when they were fairly permitted to come to the proof of those enormities, he would, in his turn, invoke the most rigorous justice of the Noble Lords, and the full vengeance of Almighty God, not on the head of his Right Hon. Friend, but on his own, if he did not prove these enormities and bring them home to the defendant, in the way which his Rt. Hon. Friend had charged them upon him; and this he pledged himself to do, under an imprecation on himself, as solemn as the Counsel had invoked on their client.” As these passages, and the passages from the introductory speech of Mr. Burke, have been presented to the reader, it is fair that he should also receive what Mr. Hastings said in his defence.

“I will not detain your Lordships by adverting, for any length, to the story told by the manager who opened the general charges relative to the horrid cruelties practised on the natives of Dhee Jumla by Deby Sing.—It will be sufficient to say, that the manager never ventured to introduce this story in the form of a charge, though pressed and urged to do so, in the strongest possible terms, both in and out of Parliament.—Mr. Paterson, on whose authority he relied for the truth of his assertions, and with whom, he said, he wished to go down to posterity, has had the generosity to write to my attorney in Calcutta, for my information, ’That he felt the sincerest concern to find his reports turned to my disadvantage, as I acted as might be expected from a man of humanity throughout all the transactions in which Deby Sing was concerned.’—Had the cruelties which the manager stated been really inflicted, it was not possible, as he very well knew at the time, to impute them, even by any kind of forced construction, to me.—My Lords, it is a fact that I was the first person to give Mr. Paterson an ill opinion of Deby Sing, whose conduct upon former occasions had left an unfavourable, and perhaps au unjust, impression upon my mind. In employing Deby Sing I certainly yielded up my opinion to Mr. Anderson and Mr. Shore, who had better opportunities of knowing him than I could have. In the course of the inquiry into his conduct he received neither favour nor countenance from me, nor from any Member of the Board. That inquiry was carried on principally when I was at Lucknow, and was not completed during my government, though it was commenced and continued with every possible solemnity, and with the sincerest desire, on my part, and on the part of my colleagues, to do strict and impartial justice. The result I have read in England; and it certainly appears that though the man was not entirely innocent, the extent of his guilt bore no sort of proportion to the magnitude of charges against him. In particular, it is proved that the most horrible of those horrible acts, so artfully detailed, and with such effect, in this place, never were committed at all.

“Here I leave the subject, convinced that every one of your Lordships must feel for the unparalleled injustice that was done to me by the introduction and propagation of that atrocious calumny.“ How far these allegations of a man in his own favour, who would not allow them to be submitted to proof, are entitled to weigh, is the question which remains.

[1]On this head of the proceedings, have been followed the printed Minutes of Evidence, ut supra, p. 1103–1301, and the Hist. of the Trial, ut supra, part iii.

[1]On this article of charge, see printed Minutes of evidence, ut supra, p. 1303–1458; History of Trial, ut supra, part iv. p. 64–80.

[1]He asserted, “The resources of India cannot, in time of war, meet the expenses of India.” He denied that loans could be obtained: “I could not borrow to the utmost extent of my wants, during the late war, and tax posterity to pay the interest of my loans. The resources to be obtained by loans (those excepted for which bills upon the Company were granted,) failed early in my administration, and will fail much earlier in Lord Cornwallis’s.”

[2]The Nizam.

[3]Moodajee Bonsla.

[4]Madajee Scindia.

[1]The Mahrattas.

[2]Tippoo Sultan.

[1]See, for this head of the trial, Minutes of Evidence, ut supra, p. 1465–1822; Hist. of the Trial, part v.

[1]Hist. of the Trial, ut supra, part vi. p. 42.

[2]Minutes, ut supra, p. 1823–2090; Hist. ut supra, part vi. p. 38–55.

[1]Report of the Committee of the House of Commons (which Committee were the managers) appointed 5th March, 1794, to report on certain matters in the impeachment of Mr. Hastings.

[1]Minutes, ut supra, p. 2090–2323; Hist. of Trial, ut supra, part vi. p. 55–78.

[1]See Appendix at the end of this chapter.

[1]For the evidence, and incidents on the reply, see the printed Minutes, ut supra, p. 2479–2854; History of the Trial, ut supra, part vii.

[1]In this concluding part of the business of the impeachment, has been followed a volume in quarto entitled “Debates of the House of Lords, on the Evidence delivered on the Trial of Warren Hastings, Esquire; Proceedings of the East India Company, in consequence of his Acquittal; and Testimonials of the British and Native Inhabitants of India, relative to his Character and Conduct whilst he was Governor-General of Fort William in Bengal.“—This was a volume compiled and distributed under Mr. Hastings’ directions, and at his expense, but never published. The contents of it, however, are found almost verbatim in the History of the Trial, (part viii.) to which reference has been so frequently made.

[1]Debates of the House of Lords, &c. ut supra, p. 331–495.

[1]What Mr. Burke said upon the subject of this attack deserves attention; though his strictures fall greatly short of the mark, because his mind was deluded by the fallacy—of respect for bad Judges, and bad laws. On the day after the speech of Lord Thurlow was delivered in the House of Lords, he thus addressed the House of Commons:

“The licence of the present times makes it very difficult 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 or wisdom. All our proceedings have been constantly published, according to the discretion and ability of individuals, with impunity, almost ever since I came into Parliament. By prescription people had obtained something like a right to this abuse. I do not justify it. The abuse is now grown so inveterate, that to punish it without a previous notice would have an appearance of hardship, if not injustice. These publications are frequently erroneous as well as irregular, but not always so: what they give as Reports and Resolutions of this House, have sometimes been fairly given.

“It has not been uncommon to attack the proceedings of the House itself, under colour of attacking these irregular publications; and the House, notwithstanding this colourable plea, has, in some instances, proceeded to punish the persons who have thus insulted it. When a complaint is made of a piratical edition of a work, the author admits that it is his work that is thus piratically published; and whoever attacks the work itself in these unauthorized publications, does not attack it less than if he had attacked it in an edition authorised by the writer.

“I understand, that in a place which I greatly respect, and by a person for whom I have likewise great respect, 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 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 had been aspersed, as arising from ignorance or corruption.

“I think it impossible, combining all the circumstances, 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 honour of presenting to this House. For any thing improper in that report I am responsible, as well as the other 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 it may act upon both in the time and manner that to your judgment may seem most expedient, or that your may not act upon them at all, if you should think it most useful to 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, to preserve the authority of the Judges. This, however, does not depend upon us, but upon themselves. It is necessary to preserve the dignity and respect of all the constitutional authorities. This too, depends 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 is 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.

“For your committee of managers and for myself, I must say, that the Report was deliberately made, and does not, as I conceive, contain any very material error, or any undue or indecent reflection upon any person. It does not accuse the Judges of ignorance or corruption. Whatever it says, it does not say calummously. This 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 opinions were given, not upon the Law, but upon the Case. It states that the mode of giving the opinions were 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 them, nor are they entered upon the Journals. 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 are the committee, as I conceive (and I full 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 every thing 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 the Kingdom.” Hist. of Trial, part vii. p. 117, 118.

No reply or observation was made on the subject by any other member.

[1]What Mr. Burke said upon the subject of this attack deserves attention; though his strictures fall greatly short of the mark, because his mind was deluded by the fallacy—of respect for bad Judges, and bad laws. On the day after the speech of Lord Thurlow was delivered in the House of Lords, he thus addressed the House of Commons:

“The licence of the present times makes it very difficult 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 or wisdom. All our proceedings have been constantly published, according to the discretion and ability of individuals, with impunity, almost ever since I came into Parliament. By prescription people had obtained something like a right to this abuse. I do not justify it. The abuse is now grown so inveterate, that to punish it without a previous notice would have an appearance of hardship, if not injustice. These publications are frequently erroneous as well as irregular, but not always so: what they give as Reports and Resolutions of this House, have sometimes been fairly given.

“It has not been uncommon to attack the proceedings of the House itself, under colour of attacking these irregular publications; and the House, notwithstanding this colourable plea, has, in some instances, proceeded to punish the persons who have thus insulted it. When a complaint is made of a piratical edition of a work, the author admits that it is his work that is thus piratically published; and whoever attacks the work itself in these unauthorized publications, does not attack it less than if he had attacked it in an edition authorised by the writer.

“I understand, that in a place which I greatly respect, and by a person for whom I have likewise great respect, 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 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 had been aspersed, as arising from ignorance or corruption.

“I think it impossible, combining all the circumstances, 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 honour of presenting to this House. For any thing improper in that report I am responsible, as well as the other 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 it may act upon both in the time and manner that to your judgment may seem most expedient, or that your may not act upon them at all, if you should think it most useful to 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, to preserve the authority of the Judges. This, however, does not depend upon us, but upon themselves. It is necessary to preserve the dignity and respect of all the constitutional authorities. This too, depends 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 is 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.

“For your committee of managers and for myself, I must say, that the Report was deliberately made, and does not, as I conceive, contain any very material error, or any undue or indecent reflection upon any person. It does not accuse the Judges of ignorance or corruption. Whatever it says, it does not say calummously. This 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 opinions were given, not upon the Law, but upon the Case. It states that the mode of giving the opinions were 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 them, nor are they entered upon the Journals. 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 are the committee, as I conceive (and I full 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 every thing 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 the Kingdom.” Hist. of Trial, part vii. p. 117, 118.

No reply or observation was made on the subject by any other member.