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

The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12)
Author: Burke Edmund
Title: The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12)
Release Date: 2006-04-20
Type book: Text
Copyright Status: Public domain in the USA.
Date added: 25 March 2019
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THE WORKS
OF
THE RIGHT HONOURABLE
EDMUND BURKE

IN TWELVE VOLUMES
VOLUME THE ELEVENTH

BURKE COAT OF ARMS.

London
JOHN C. NIMMO
14, KING WILLIAM STREET, STRAND, W.C.
MDCCCLXXXVII


CONTENTS OF VOL. XI.

{1}


REPORT
FROM THE
COMMITTEE OF THE HOUSE OF COMMONS,
APPOINTED
TO INSPECT THE LORDS' JOURNALS
IN RELATION TO THEIR PROCEEDINGSON THE TRIAL OF

WARREN HASTINGS, ESQUIRE.
WITH AN APPENDIX.
ALSO,
REMARKS IN VINDICATION OF THE SAME FROM THEANIMADVERSIONS OF LORD THURLOW.
1794.

{2}


NOTE.

In the sixth article Mr. Burke was supported, on the 16th ofFebruary, 1790, by Mr. Anstruther, who opened the remainingpart of this article and part of the seventh article, and the evidencewas summed up and enforced by him. The rest of theevidence upon the sixth, and on part of the seventh, eighth, andfourteenth articles, were respectively opened and enforced byMr. Fox and other of the Managers, on the 7th and 9th ofJune, in the same session. On the 23d May, 1791, Mr. St.John opened the fourth article of charge; and evidence washeard in support of the same. In the following sessions of1792, Mr. Hastings's counsel were heard in his defence, whichwas continued through the whole of the sessions of 1793.

On the 5th of March, 1794, a select committee was appointedby the House of Commons to inspect the Lords' Journals,in relation to their proceeding on the trial of WarrenHastings, Esquire, and to report what they found therein tothe House, (which committee were the managers appointedto make good the articles of impeachment against the saidWarren Hastings, Esquire,) and who were afterwards instructedto report the several matters which had occurred since thecommencement of the prosecution, and which had, in theiropinion, contributed to the duration thereof to that time, withtheir observations thereupon. On the 30th of April, the followingReport, written by Mr. Burke, and adopted by the Committee,was presented to the House of Commons, and orderedby the House to be printed.{3}


REPORT

Made on the 30th April, 1794, from the Committee of theHouse of Commons, appointed to inspect the Lords' Journals,in relation to their proceeding on the trial of WarrenHastings, Esquire, and to report what they findtherein to the House (which committee were the managersappointed to make good the articles of impeachmentagainst the said Warren Hastings, Esquire); and whowere afterwards instructed to report the several matterswhich have occurred since the commencement of the saidprosecution, and which have, in their opinion, contributedto the duration thereof to the present time, with theirobservations thereupon.

Your Committee has received two powers fromthe House:—The first, on the 5th of March,1794, to inspect the Lords' Journals, in relation totheir proceedings on the trial of Warren Hastings,Esquire, and to report what they find therein to theHouse. The second is an instruction, given on the17th day of the same month of March, to this effect:That your Committee do report to this House theseveral matters which have occurred since the commencementof the said prosecution, and which have,in their opinion, contributed to the duration thereofto the present time, with their observations thereupon.{4}

Your Committee is sensible that the duration ofthe said trial, and the causes of that duration, as wellas the matters which have therein occurred, do wellmerit the attentive consideration of this House. Wehave therefore endeavored with all diligence to employthe powers that have been granted and to executethe orders that have been given to us, and toreport thereon as speedily as possible, and as fully asthe time would admit.

Your Committee has considered, first, the merefact of the duration of the trial, which they find tohave commenced on the 13th day of February, 1788,and to have continued, by various adjournments, tothe said 17th of March. During that period the sittingsof the Court have occupied one hundred andeighteen days, or about one third of a year. Thedistribution of the sitting days in each year is asfollows.

Days.
In the year1788, the Court sat35
1789,17
1790,14
1791,5
1792,22
1793,22
1794, to the 1st of March, inclusive3
Total118

Your Committee then proceeded to consider thecauses of this duration, with regard to time as measuredby the calendar, and also as measured by thenumber of days occupied in actual sitting. Theyfind, on examining the duration of the trial with ref{5}erenceto the number of years which it has lasted,that it has been owing to several prorogations and toone dissolution of Parliament; to discussions whichare supposed to have arisen in the House of Peers onthe legality of the continuance of impeachments fromParliament to Parliament; that it has been owing tothe number and length of the adjournments of theCourt, particularly the adjournments on account ofthe Circuit, which adjournments were interposed inthe middle of the session, and the most proper timefor business; that it has been owing to one adjournmentmade in consequence of a complaint of theprisoner against one of your Managers, which tookup a space of ten days; that two days' adjournmentswere made on account of the illness of certain of theManagers; and, as far as your Committee can judge,two sitting days were prevented by the sudden andunexpected dereliction of the defence of the prisonerat the close of the last session, your Managers nothaving been then ready to produce their evidence inreply, nor to make their observations on the evidenceproduced by the prisoner's counsel, as they expectedthe whole to have been gone through before they werecalled on for their reply. In this session your Committeecomputes that the trial was delayed about aweek or ten days. The Lords waited for the recoveryof the Marquis Cornwallis, the prisoner wishingto avail himself of the testimony of that noble person.

With regard to the one hundred and eighteen daysemployed in actual sitting, the distribution of thebusiness was in the manner following.

There were spent,{6}

Days
In reading the articles of impeachment, and thedefendant's answer, and in debate on the modeof proceeding3
Opening speeches, and summing up by the Managers19
Documentary and oral evidence by the Managers51
Opening speeches and summing up by the defendant'scounsel, and defendant's addresses to the Court22
Documentary and oral evidence on the part of the defendant23
118

The other head, namely, that the trial has occupiedone hundred and eighteen days, or nearly onethird of a year. This your Committee conceives tohave arisen from the following immediate causes.First, the nature and extent of the matter to betried. Secondly, the general nature and quality ofthe evidence produced: it was principally documentaryevidence, contained in papers of great length,the whole of which was often required to be readwhen brought to prove a single short fact. Underthe head of evidence must be taken into considerationthe number and description of the witnesses examinedand cross-examined. Thirdly, and principally,the duration of the trial is to be attributed toobjections taken by the prisoner's counsel to the admissibilityof several documents and persons offeredas evidence on the part of the prosecution. Theseobjections amounted to sixty-two: they gave rise toseveral debates, and to twelve references from theCourt to the Judges. On the part of the Mana{7}gers,the number of objections was small; the debatesupon, them were short; there was not upon themany reference to the Judges; and the Lords did noteven retire upon any of them to the Chamber of Parliament.

This last cause of the number of sitting days yourCommittee considers as far more important than allthe rest. The questions upon the admissibility ofevidence, the manner in which these questions werestated and were decided, the modes of proceeding, thegreat uncertainty of the principle upon which evidencein that court is to be admitted or rejected,—allthese appear to your Committee materially to affectthe constitution of the House of Peers as a courtof judicature, as well as its powers, and the purposesit was intended to answer in the state. The Peershave a valuable interest in the conservation of theirown lawful privileges. But this interest is not confinedto the Lords. The Commons ought to partakein the advantage of the judicial rights and privilegesof that high court. Courts are made for the suitors,and not the suitors for the court. The conservationof all other parts of the law, the whole indeed ofthe rights and liberties of the subject, ultimatelydepends upon the preservation of the Law of Parliamentin its original force and authority.

Your Committee had reason to entertain apprehensionsthat certain proceedings in this trial may possiblylimit and weaken the means of carrying on anyfuture impeachment of the Commons. As yourCommittee felt these apprehensions strongly, theythought it their duty to begin with humbly submittingfacts and observations on the proceedings concerningevidence to the consideration of this House,{8}before they proceed to state the other matters whichcome within the scope of the directions which theyhave received.

To enable your Committee the better to executethe task imposed upon them in carrying on the impeachmentof this House, and to find some principleon which they were to order and regulate their conducttherein, they found it necessary to look attentivelyto the jurisdiction of the court in which theywere to act for this House, and into its laws andrules of proceeding, as well as into the rights andpowers of the House of Commons in their impeachments.

RELATION OF THE JUDGES, ETC., TO THE COURT OFPARLIAMENT.

Upon examining into the course of proceeding inthe House of Lords, and into the relation whichexists between the Peers, on the one hand, and theirattendants and assistants, the Judges of the Realm,Barons of the Exchequer of the Coif, the King'slearned counsel, and the Civilians Masters of theChancery, on the other, it appears to your Committeethat these Judges, and other persons learned in theCommon and Civil Laws, are no integrant and necessarypart of that court. Their writs of summons areessentially different; and it does not appear that theyor any of them have, or of right ought to have, adeliberative voice, either actually or virtually, in thejudgments given in the High Court of Parliament.Their attendance in that court is solely ministerial;and their answers to questions put to them

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