Complete Works of Edmund Burke

by Edmund Burke

  For my motives for withholding the several receipts from the knowledge of the Council, or of the Court of Directors, and for taking bonds for part of these sums, and paying others into the treasury as deposits on my own account, I have generally accounted in my letter to the Honorable the Court of Directors of the 22d May, 1782: namely, 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 at that distance of time could verify; and that I did not think it worth my care to observe the same means with the rest.” It will not be expected that I should be able to give a more correct explanation of my intentions after a lapse of three years, having declared at the time that many particulars had escaped my remembrance; neither shall I attempt to add more than the clearer affirmation of the facts implied in that report of them, and such inferences as necessarily, or with a strong probability, follow them.

  I have said that the three first sums of the account were paid into the Company’s treasury without passing through my hands. The second of these was forced into notice by its destination and application to the expense of a detachment which was formed and employed against Mahdajee Sindia under the command of Lieutenant-Colonel Camac, as I particularly apprised the Court of Directors in my letter of the 29th November, 1780. The other two were certainly not intended, when I received them, to be made public, though intended for public service, and actually applied to it. The exigencies of the government were at that time my own, and every pressure upon it rested with its full weight upon my mind. Wherever I could find allowable means of relieving those wants, I eagerly seized them; but neither could it occur to me as necessary to state on our Proceedings every little aid which I could thus procure, nor do I know how I could have stated it, without appearing to court favor by an ostentation which I disdain, nor without the chance of exciting the jealousy of my colleagues by the constructive assertion of a separate and unparticipated merit, derived from the influence of my station, to which they might have laid an equal claim. I should have deemed it particularly dishonorable to receive for my own use money tendered by men of a certain class, from whom I had interdicted the receipt of presents to my inferiors, and bound them by oath not to receive them. I was therefore more than ordinarily cautious to avoid the suspicion of it, which would scarcely have failed to light upon me, had I suffered the money to be brought directly to my own house, or to that of any person known to be in trust for me: for these reasons I caused it to be transported immediately to the treasury. There, you well know, Sir, it could not be received without being passed to some credit, and this could only be done by entering it as a loan or as a deposit: the first was the least liable to reflection, and therefore I had obviously recourse to it. Why the second sum was entered as a deposit I am utterly ignorant: possibly it was done without any special direction from me; possibly because it was the simplest mode of entry, and therefore preferred, as the transaction itself did not require concealment, having been already avowed.

  Although I am firmly persuaded that these were my sentiments on the occasion, yet I will not affirm that they were. Though I feel their impression as the remains of a series of thoughts retained on my memory, I am not certain that they may not have been produced by subsequent reflection on the principal fact, combining with it the probable motives of it. Of this I am certain, that it was my design originally to have concealed the receipt of all the sums, except the second, even from the knowledge of the Court of Directors. They had answered my purpose of public utility, and I had almost totally dismissed them from my remembrance. But when fortune threw a sum in my way 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, which I did hastily and generally: hastily, perhaps to prevent the vigilance and activity of secret calumny; and generally, because I knew not the exact amount of the sum, of which I was in the receipt, but not in the full possession. I promised to acquaint them with the result as soon as I should be in possession of it, and in the performance of my promise I thought it consistent with it to add to the account all the former appropriations of the same kind: my good genius then suggesting to me, with a spirit of caution which might have spared me the trouble of this apology, had I universally attended to it, that, if I had suppressed them, and they were afterwards known, I might be asked what were my motives for withholding part of these receipts from the knowledge of the Court of Directors and informing them of the rest.

  It being my wish to clear up every doubt upon this transaction, which either my own mind could suggest or which may have been suggested by others, I beg leave to suppose another question, and to state the terms of it in my reply, by informing you that the indorsement on the bonds was made about the period of my leaving the Presidency, in the middle of the year 1781, in order to guard against their becoming a claim on the Company, as part of my estate, in the event of my death occurring in the course of the service on which I was then entering.

  This, Sir, is the plain history of the transaction. I should be ashamed to request that you would communicate it to the Honorable Court of Directors, whose time is too valuable for the intrusion of a subject so uninteresting, but that it is become a point of indispensable duty; I must therefore request the favor of you to lay it, at a convenient time, before them. In addressing it to you personally, I yield to my own feelings of the respect which is due to them as a body, and to the assurances which I derive from your experienced civilities that you will kindly overlook the trouble imposed by it.

  I have the honor to be, Sir,

  Your very humble and most obedient servant,

  (Signed) WARREN HASTINGS.

  CHELTENHAM, 11 July, 1785.

  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 t
o the duration thereof to the present time, with their observations thereupon.

  Your Committee has received two powers from the House: — The first, on the 5th of March, 1794, to inspect the Lords’ Journals, in relation to their proceedings on the trial of Warren Hastings, Esquire, and to report what they find therein to the House. The second is an instruction, given on the 17th day of the same month of March, to this effect: That your Committee do report to this House the several matters which have occurred since the commencement of the said prosecution, and which have, in their opinion, contributed to the duration thereof to the present time, with their observations thereupon.

  Your Committee is sensible that the duration of the said trial, and the causes of that duration, as well as the matters which have therein occurred, do well merit the attentive consideration of this House. We have therefore endeavored with all diligence to employ the powers that have been granted and to execute the orders that have been given to us, and to report thereon as speedily as possible, and as fully as the time would admit.

  Your Committee has considered, first, the mere fact of the duration of the trial, which they find to have commenced on the 13th day of February, 1788, and to have continued, by various adjournments, to the said 17th of March. During that period the sittings of the Court have occupied one hundred and eighteen days, or about one third of a year. The distribution of the sitting days in each year is as follows.

  Days.

  In the year

  1788, the Court sat

  35

  1789,

  17

  1790,

  14

  1791,

  5

  1792,

  22

  1793,

  22

  1794, to the 1st of March, inclusive

  3

  Total

  118

  Your Committee then proceeded to consider the causes of this duration, with regard to time as measured by the calendar, and also as measured by the number of days occupied in actual sitting. They find, on examining the duration of the trial with reference to the number of years which it has lasted, that it has been owing to several prorogations and to one dissolution of Parliament; to discussions which are supposed to have arisen in the House of Peers on the legality of the continuance of impeachments from Parliament to Parliament; that it has been owing to the number and length of the adjournments of the Court, particularly the adjournments on account of the Circuit, which adjournments were interposed in the middle of the session, and the most proper time for business; that it has been owing to one adjournment made in consequence of a complaint of the prisoner against one of your Managers, which took up a space of ten days; that two days’ adjournments were made on account of the illness of certain of the Managers; and, as far as your Committee can judge, two sitting days were prevented by the sudden and unexpected dereliction of the defence of the prisoner at the close of the last session, your Managers not having been then ready to produce their evidence in reply, nor to make their observations on the evidence produced by the prisoner’s counsel, as they expected the whole to have been gone through before they were called on for their reply. In this session your Committee computes that the trial was delayed about a week or ten days. The Lords waited for the recovery of the Marquis Cornwallis, the prisoner wishing to avail himself of the testimony of that noble person.

  With regard to the one hundred and eighteen days employed in actual sitting, the distribution of the business was in the manner following.

  There were spent, —

  Days

  In reading the articles of impeachment, and the defendant’s answer, and in debate on the mode of proceeding

  3

  Opening speeches, and summing up by the Managers

  19

  Documentary and oral evidence by the Managers

  51

  Opening speeches and summing up by the defendant’s counsel, and defendant’s addresses to the Court

  22

  Documentary and oral evidence on the part of the defendant

  23

  118

  The other head, namely, that the trial has occupied one hundred and eighteen days, or nearly one third of a year. This your Committee conceives to have arisen from the following immediate causes. First, the nature and extent of the matter to be tried. Secondly, the general nature and quality of the evidence produced: it was principally documentary evidence, contained in papers of great length, the whole of which was often required to be read when brought to prove a single short fact. Under the head of evidence must be taken into consideration the number and description of the witnesses examined and cross-examined. Thirdly, and principally, the duration of the trial is to be attributed to objections taken by the prisoner’s counsel to the admissibility of several documents and persons offered as evidence on the part of the prosecution. These objections amounted to sixty-two: they gave rise to several debates, and to twelve references from the Court to the Judges. On the part of the Managers, the number of objections was small; the debates upon, them were short; there was not upon them any reference to the Judges; and the Lords did not even retire upon any of them to the Chamber of Parliament.

  This last cause of the number of sitting days your Committee considers as far more important than all the rest. The questions upon the admissibility of evidence, the manner in which these questions were stated and were decided, the modes of proceeding, the great uncertainty of the principle upon which evidence in that court is to be admitted or rejected, — all these appear to your Committee materially to affect the constitution of the House of Peers as a court of judicature, as well as its powers, and the purposes it was intended to answer in the state. The Peers have a valuable interest in the conservation of their own lawful privileges. But this interest is not confined to the Lords. The Commons ought to partake in the advantage of the judicial rights and privileges of that high court. Courts are made for the suitors, and not the suitors for the court. The conservation of all other parts of the law, the whole indeed of the rights and liberties of the subject, ultimately depends upon the preservation of the Law of Parliament in its original force and authority.

  Your Committee had reason to entertain apprehensions that certain proceedings in this trial may possibly limit and weaken the means of carrying on any future impeachment of the Commons. As your Committee felt these apprehensions strongly, they thought it their duty to begin with humbly submitting facts and observations on the proceedings concerning evidence to the consideration of this House, before they proceed to state the other matters which come within the scope of the directions which they have received.

  To enable your Committee the better to execute the task imposed upon them in carrying on the impeachment of this House, and to find some principle on which they were to order and regulate their conduct therein, they found it necessary to look attentively to the jurisdiction of the court in which they were to act for this House, and into its laws and rules of proceeding, as well as into the rights and powers of the House of Commons in their impeachments.

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

  Upon examining into the course of proceeding in the House of Lords, and into the relation which exists between the Peers, on the one hand, and their attendants and assistants, the Judges of the Realm, Barons of the Exchequer of the Coif, the King’s learned counsel, and the Civilians Masters of the Chancery, on the other, it appears to your Committee that these Judges, and other persons learned in the Common and Civil Laws, are no integrant and necessary part of that court. Their writs of summons are essentially different; and it does not appear that they or any of them have, or of right ought to have, a deliberative voice, either actually or virtually, in the judgments given in the High Court of Parliament. Their attendance in that court is solely ministerial; and their answers to questions put to them are not to be regarded as declaratory of the Law of Parliament, but are merely consultory responses, in order to furnish such matter (to
be submitted to the judgment of the Peers) as may be useful in reasoning by analogy, so far as the nature of the rules in the respective courts of the learned persons consulted shall appear to the House to be applicable to the nature and circumstances of the case before them, and no otherwise.

  JURISDICTION OF THE LORDS.

  Your Committee finds, that, in all impeachments of the Commons of Great Britain for high crimes and misdemeanors before the Peers in the High Court of Parliament, the Peers are not triers or jurors only, but, by the ancient laws and constitution of this kingdom, known by constant usage, are judges both of law and fact; and we conceive that the Lords are bound not to act in such a manner as to give rise to an opinion that they have virtually submitted to a division of their legal powers, or that, putting themselves into the situation of mere triers or jurors, they may suffer the evidence in the cause to be produced or not produced before them, according to the discretion of the judges of the inferior courts.