The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12). Edmund Burke
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The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12)
REPORT FROM THE COMMITTEE OF THE HOUSE OF COMMONS, APPOINTED TO INSPECT THE LORDS' JOURNALS IN RELATION TO THEIR PROCEEDINGS ON THE TRIAL OF WARREN HASTINGS, ESQUIRE. WITH AN APPENDIX. ALSO, REMARKS IN VINDICATION OF THE SAME FROM THE ANIMADVERSIONS OF LORD THURLOW. 1794
NOTE.
In the sixth article Mr. Burke was supported, on the 16th of February, 1790, by Mr. Anstruther, who opened the remaining part of this article and part of the seventh article, and the evidence was summed up and enforced by him. The rest of the evidence upon the sixth, and on part of the seventh, eighth, and fourteenth articles, were respectively opened and enforced by Mr. Fox and other of the Managers, on the 7th and 9th of June, in the same session. On the 23d May, 1791, Mr. St. John opened the fourth article of charge; and evidence was heard in support of the same. In the following sessions of 1792, Mr. Hastings's counsel were heard in his defence, which was continued through the whole of the sessions of 1793.
On the 5th of March, 1794, a select committee was appointed by the House of Commons to inspect the Lords' Journals, in relation to their proceeding on the trial of Warren Hastings, Esquire, and to report what they found therein to the House, (which committee were the managers appointed to make good the articles of impeachment against the said Warren Hastings, Esquire,) and who were afterwards instructed to report the several matters which had occurred since the commencement of the prosecution, and which had, in their opinion, contributed to the duration thereof to that time, with their observations thereupon. On the 30th of April, the following Report, written by Mr. Burke, and adopted by the Committee, was presented to the House of Commons, and ordered by the House to be printed.
REPORT
Made on the 30th April, 1794, from the Committee of the House of Commons, appointed to inspect the Lords' Journals, in relation to their proceeding on the trial of Warren Hastings, Esquire, and to report what they find therein to the House (which committee were the managers appointed to make good the articles of impeachment against the said Warren Hastings, Esquire); and who were afterwards instructed to report the several matters which have occurred since the commencement of the said prosecution, and which have, in their opinion, contributed to the duration thereof to the present time, with their observations thereupon.
Your Committee has received two powers from the House:—The first, on the 5th of March, 1794, to inspect the Lords' Journals, in relation to their proceedings on the trial of Warren Hastings, Esquire, and to report what they find therein to the House. The second is an instruction, given on the 17th day of the same month of March, to this effect: That your Committee do report to this House the several matters which have occurred since the commencement of the said prosecution, and which have, in their opinion, contributed to the duration thereof to the present time, with their observations thereupon.
Your Committee is sensible that the duration of the said trial, and the causes of that duration, as well as the matters which have therein occurred, do well merit the attentive consideration of this House. We have therefore endeavored with all diligence to employ the powers that have been granted and to execute the orders that have been given to us, and to report thereon as speedily as possible, and as fully as the time would admit.
Your Committee has considered, first, the mere fact of the duration of the trial, which they find to have commenced on the 13th day of February, 1788, and to have continued, by various adjournments, to the said 17th of March. During that period the sittings of the Court have occupied one hundred and eighteen days, or about one third of a year. The distribution of the sitting days in each year is as follows.
Your Committee then proceeded to consider the causes of this duration, with regard to time as measured by the calendar, and also as measured by the number of days occupied in actual sitting. They find, on examining the duration of the trial with reference to the number of years which it has lasted, that it has been owing to several prorogations and to one dissolution of Parliament; to discussions which are supposed to have arisen in the House of Peers on the legality of the continuance of impeachments from Parliament to Parliament; that it has been owing to the number and length of the adjournments of the Court, particularly the adjournments on account of the Circuit, which adjournments were interposed in the middle of the session, and the most proper time for business; that it has been owing to one adjournment made in consequence of a complaint of the prisoner against one of your Managers, which took up a space of ten days; that two days' adjournments were made on account of the illness of certain of the Managers; and, as far as your Committee can judge, two sitting days were prevented by the sudden and unexpected dereliction of the defence of the prisoner at the close of the last session, your Managers not having been then ready to produce their evidence in reply, nor to make their observations on the evidence produced by the prisoner's counsel, as they expected the whole to have been gone through before they were called on for their reply. In this session your Committee computes that the trial was delayed about a week or ten days. The Lords waited for the recovery of the Marquis Cornwallis, the prisoner wishing to avail himself of the testimony of that noble person.
With regard to the one hundred and eighteen days employed in actual sitting, the distribution of the business was in the manner following.
There were spent,—
The other head, namely, that the trial has occupied one hundred and eighteen days, or nearly one third of a year. This your Committee conceives to have arisen from the following immediate causes. First, the nature and extent of the matter to be tried. Secondly, the general nature and quality of the evidence produced: it was principally documentary evidence, contained in papers of great length, the whole of which was often required to be read when brought to prove a single short fact. Under the head of evidence must be taken into consideration the number and description of the witnesses examined and cross-examined. Thirdly, and principally, the duration of the trial is to be attributed to objections taken by the prisoner's counsel to the admissibility of several documents and persons offered as evidence on the part of the prosecution. These objections amounted to sixty-two: they gave rise to several debates, and to twelve references from the Court to the Judges. On the part of the Managers, the number of objections was small; the debates upon, them were short; there was not upon them any reference to the Judges; and the Lords did not even retire upon any of them to the Chamber of Parliament.
This last cause of the number of sitting days your Committee considers as far more important than all the rest. The questions upon the admissibility of evidence, the manner in which these questions were stated and were decided, the modes of proceeding, the great uncertainty of the principle upon which evidence in that court is to be admitted or rejected,—all these appear to your Committee materially to affect the constitution of the House of Peers as a court of judicature, as well as its powers, and the purposes it was intended to answer in the state. The Peers have a valuable interest in the conservation of their own lawful privileges. But this interest is not confined to the Lords. The Commons ought to partake in the advantage of the judicial rights and privileges of that high court. Courts are made for the suitors, and not the suitors for the court. The conservation of all other parts of the law, the whole indeed of the rights and liberties of the subject, ultimately depends upon the preservation of the Law of Parliament in its original force and authority.
Your Committee had reason to entertain apprehensions that certain proceedings in this trial may possibly limit and weaken the means of carrying on any future impeachment of the Commons. As your Committee felt these apprehensions strongly, they thought it their duty to begin with humbly submitting facts and observations on the proceedings concerning evidence to the consideration of this House, before they proceed to state the other matters which come within the scope of the directions which they have received.
To enable your Committee the better to execute the task imposed upon them in carrying on the impeachment of this House, and to find some principle on which they were to order and regulate their conduct therein, they found it necessary to look attentively to the jurisdiction of the court in which they were to act for this House, and into its laws and rules of