by Edmund Burke
Your Committee, finding this course of proceeding to be concordant with the character and spirit of our judicial proceeding, continued from time immemorial, supported by arguments of sound theory, and confirmed by effects highly beneficial, could not see without uneasiness, in this great trial for Indian offences, a marked innovation. Against their reiterated requests, remonstrances, and protestations, the opinions of the Judges were always taken secretly. Not only the constitutional publicity for which we contend was refused to the request and entreaty of your Committee, but when a noble peer, on the 24th day of June, 1789, did in open court declare that he would then propose some questions to the Judges in that place, and hoped to receive their answer openly, according to the approved good customs of that and of other courts, the Lords instantly put a stop to the further proceeding by an immediate adjournment to the Chamber of Parliament. Upon this adjournment, we find by the Lords’ Journals, that the House, on being resumed, ordered, that “it should resolve itself into a Committee of the whole House, on Monday next, to take into consideration what is the proper manner of putting questions by the Lords to the Judges, and of their answering the same, in judicial proceedings.” The House did thereon resolve itself into a committee, from which the Earl of Galloway, on the 29th of the same month, reported as follows:— “That the House has, in the trial of Warren Hastings, Esquire, proceeded in a regular course, in the manner of propounding their questions to the Judges in the Chamber of Parliament, and in receiving their answers to them in the same place.” The resolution was agreed to by the Lords; but the protest as below was entered thereupon, and supported by strong arguments.
Your Committee remark, that this resolution states only, that the House had proceeded, in this secret manner of propounding questions to the Judges and of receiving their answers, during the trial, and on matters of debate between the parties, “in a regular course.” It does not assert that another course would not have been as regular. It does not state either judicial convenience, principle, or body of precedents for that regular course. No such body of precedents appear on the Journal, that we could discover. Seven-and-twenty, at least, in a regular series, are directly contrary to this regular course. Since the era of the 29th of June, 1789, no one question has been admitted to go publicly to the Judges.
This determined and systematic privacy was the more alarming to your Committee, because the questions did not (except in that case) originate from the Lords for the direction of their own conscience. These questions, in some material instances, were not made or allowed by the parties at the bar, nor settled in open court, but differed materially from what your Managers contended was the true state of the question, as put and argued by them. They were such as the Lords thought proper to state for them. Strong remonstrances produced some alteration in this particular; but even after these remonstrances, several questions were made on statements which the Managers never made nor admitted.
Your Committee does not know of any precedent before this, in which the Peers, on a proposal of the Commons, or of a less weighty person before their court, to have the cases publicly referred to the Judges, and their arguments and resolutions delivered in their presence, absolutely refused. The very few precedents of such private reference on trials have been made, as we have observed already, sub silentio, and without any observation from the parties. In the precedents we produce, the determination is accompanied with its reasons, and the publicity is considered as the clear, undoubted right of the parties.
Your Committee, using their best diligence, have never been able to form a clear opinion upon the ground and principle of these decisions. The mere result, upon each case decided by the Lords, furnished them with no light, from any principle, precedent, or foregone authority of law or reason, to guide them with regard to the next matter of evidence which they had to offer, or to discriminate what matter ought to be urged or to be set aside: your Committee not being able to divine whether the particular evidence, which, upon a conjectural principle, they might choose to abandon, would not appear to this House, and to the judging world at large, to be admissible, and possibly decisive proof. In these straits, they had and have no choice, but either wholly to abandon the prosecution, and of consequence to betray the trust reposed in them by this House, or to bring forward such matter of evidence as they are furnished with from sure sources of authenticity, and which in their judgment, aided by the best advice they could obtain, is possessed of a moral aptitude juridically to prove or to illustrate the case which the House had given them, in charge.
MODE OF PUTTING THE QUESTIONS.
When your Committee came to examine into those private opinions of the Judges, they found, to their no small concern, that the mode both of putting the questions to the Judges, and their answers, was still more unusual and unprecedented than the privacy with which those questions were given and resolved.
This mode strikes, as we apprehend, at the vital privileges of the House. For, with the single exception of the first question put to the Judges in 1788, the case being stated, the questions are raised directly, specifically, and by name, on those privileges: that is, What evidence is it competent for the Managers of the House of Commons to produce? We conceive that it was not proper, nor justified by a single precedent, to refer to the Judges of the inferior courts any question, and still less for them to decide in their answer, of what is or is not competent for the House of Commons, or for any committee acting under their authority, to do or not to do, in any instance or respect whatsoever. This new and unheard-of course can have no other effect than to subject to the discretion of the Judges the Law of Parliament and the privileges of the House of Commons, and in a great measure the judicial privileges of the Peers themselves: any intermeddling in which on their part we conceive to be a dangerous and unwarrantable assumption of power. It is contrary to what has been declared by Lord Coke himself, in a passage before quoted, to be the duty of the Judges, — and to what the Judges of former times have confessed to be their duty, on occasions to which he refers in the time of Henry VI. And we are of opinion that the conduct of those sages of the law, and others their successors, who have been thus diffident and cautious in giving their opinions upon matters concerning Parliament, and particularly on the privileges of the House of Commons, was laudable in the example, and ought to be followed: particularly the principles upon which the Judges declined to give their opinions in the year 1614. It appears by the Journals of the Lords, that a question concerning the law relative to impositions having been put to the Judges, the proceeding was as follows. “Whether the Lords the Judges shall be heard deliver their opinion touching the point of impositions, before further consideration be had of answer to be returned to the lower House concerning the message from them lately received. Whereupon the number of the Lords requiring to hear the Judges’ opinions by saying ‘Content’ exceeding the others which said ‘Non Content,’ the Lords the Judges, so desiring, were permitted to withdraw themselves into the Lord Chancellor’s private rooms, where having remained awhile and advised together, they returned into the House, and, having taken their places, and standing discovered, did, by the mouth of the Lord Chief-Justice of the King’s Bench, humbly desire to be forborne at this time, in this place, to deliver any opinion in this case, for many weighty and important reasons, which his Lordship delivered with great gravity and eloquence; concluding that himself and his brethren are upon particulars in judicial course to speak and judge between the King’s Majesty and his people, and likewise between his Highness’s subjects, and in no case to be disputants on any side.”
Your Committee do not find anything which, through inadvertence or design, had a tendency to subject the law and course of Parliament to the opinions of the Judges of the inferior courts, from that period until the 1st of James II. The trial of Lord Delamere for high treason was had by special commission before the Lord High Steward: it was before the act which directs that all peers should be summoned to such trials. This was not a trial in
full Parliament, in which case it was then contended for that the Lord High Steward was the judge of the law, presiding in the Court, but had no vote in the verdict, and that the Lords were triers only, and had no vote in the judgment of law. This was looked on as the course, where the trial was not in full Parliament, in which latter case there was no doubt but that the Lord High Steward made a part of the body of the triers, and that the whole House was the judge. In this cause, after the evidence for the Crown had been closed, the prisoner prayed the Court to adjourn. The Lord High Steward doubted his power to take that step in that stage of the trial; and the question was, “Whether, the trial not being in full Parliament, when the prisoner is upon his trial, and evidence for the King is given, the Lords being (as it may be termed) charged with the prisoner, the Peers may separate for a time, which is the consequence of an adjournment?” The Lord High Steward doubted of his power to adjourn the Court. The case was evidently new, and his Grace proposed to have the opinion of the Judges upon it. The Judges in consequence offering to withdraw into the Exchequer Chamber, Lord Falconberg “insisted that the question concerned the privilege of the Peerage only, and conceived that the Judges are not concerned to make any determination in that matter; and being such a point of privilege, certainly the inferior courts have no right to determine it.” It was insisted, therefore, that the Lords triers should retire with the Judges. The Lord High Steward thought differently, and opposed this motion; but finding the other opinion generally prevalent, he gave way, and the Lords triers retired, taking the Judges to their consult. When the Judges returned, they delivered their opinion in open court. Lord Chief-Justice Herbert spoke for himself and the rest of the Judges. After observing on the novelty of the case, with a temperate and becoming reserve with regard to the rights of Parliaments, he marked out the limits of the office of the inferior Judges on such occasions, and declared,— “All that we, the Judges, can do is to acquaint your Grace and the noble Lords what the law is in the inferior courts in cases of the like nature, and the reason of the law in those points, and then leave the jurisdiction of the court to its proper judgment.” The Chief-Justice concluded his statement of the usage below, and his observations on the difference of the cases of a peer tried in full Parliament and by a special commission, in this manner:— “Upon the whole matter, my Lords, whether the Peers being judges in the one and not in the other instance alters the case, or whether the reason of the law in inferior courts why the jury are not permitted to separate until they have discharged themselves of their verdict may have any influence on this case, where that reason seems to fail, the prisoner being to be tried by men of unquestionable honor, we cannot presume so far as to make any determination, in a case which is both new to us and of great consequence in itself; but think it the proper way for us, having laid matters as we conceive them before your Grace and my Lords, to submit the jurisdiction of your own court to your own determination.”
It appears to your Committee, that the Lords, who stood against submitting the course of their high court to the inferior Judges, and that the Judges, who, with a legal and constitutional discretion, declined giving any opinion in this matter, acted as became them; and your Committee sees no reason why the Peers at this day should be less attentive to the rights of their court with regard to an exclusive judgment on their own proceedings or to the rights of the Commons acting as accusers for the whole commons of Great Britain in that court, or why the Judges should be less reserved in deciding upon any of these points of high Parliamentary privilege, than the Judges of that and the preceding periods. This present case is a proceeding in full Parliament, and not like the case under the commission in the time of James II., and still more evidently out of the province of Judges in the inferior courts.
All the precedents previous to the trial of Warren Hastings, Esquire, seem to your Committee to be uniform. The Judges had constantly refused to give an opinion on any of the powers, privileges, or competencies of either House. But in the present instance your Committee has found, with great concern, a further matter of innovation. Hitherto the constant practice has been to put questions to the Judges but in the three following ways: as, 1st, A question of pure abstract law, without reference to any case, or merely upon an A.B. case stated to them; 2dly, To the legal construction of some act of Parliament; 3dly, To report the course of proceeding in the courts below upon an abstract case. Besides these three, your Committee knows not of a single example of any sort, during the course of any judicial proceeding at the bar of the House of Lords, whether the prosecution has been by indictment, by information from the Attorney-General, or by impeachment of the House of Commons.
In the present trial, the Judges appear to your Committee not to have given their judgment on points of law, stated as such, but to have in effect tried the cause, in the whole course of it, — with one instance to the contrary.
The Lords have stated no question of general law, no question on the construction of an act of Parliament, no question concerning the practice of the courts below. They put the whole gross case and matter in question, with all its circumstances, to the Judges. They have, for the first time, demanded of them what particular person, paper, or document ought or ought not to be produced before them by the Managers for the Commons of Great Britain: for instance, whether, under such an article, the Bengal Consultations of such a day, the examination of Rajah Nundcomar, and the like. The operation of this method is in substance not only to make the Judges masters of the whole process and conduct of the trial, but through that medium to transfer to them the ultimate judgment on the cause itself and its merits.
The Judges attendant on the Court of Peers hitherto have not been supposed to know the particulars and minute circumstances of the cause, and must therefore be incompetent to determine upon those circumstances. The evidence taken, is not, of course, that we can find, delivered to them; nor do we find that in fact any order has been made for that purpose, even supposing that the evidence could at all regularly be put before them. They are present in court, not to hear the trial, but solely to advise in matter of law; they cannot take upon themselves to say anything about the Bengal Consultations, or to know anything of Rajah Nundcomar, of Kelleram, or of Mr. Francis, or Sir John Clavering.
That the House may be the more fully enabled to judge of the nature and tendency of thus putting the question, specifically, and on the gross case, your Committee thinks fit here to insert one of those questions, reserving a discussion of its particular merits to another place. It was stated on the 22d of April, 1790, “On that day the Managers proposed to show that Kelleram fell into great balances with the East India Company, in consequence of his appointment.” It is so stated in the printed Minutes (). But the real tendency and gist of the proposition is not shown. However, the question was put, “Whether it be or be not competent to the Managers for the Commons to give evidence upon the charge in the sixth article, to prove that the rent [at?] which the defendant, Warren Hastings, Esquire, let the lands mentioned in the said sixth article of charge to Kelleram fell into arrear and was deficient; and whether, if proof were offered that the rent fell into arrear immediately after the letting, the evidence in that case would be competent?” The Judges answered, on the 27th of the said month, as follows:— “It is not competent for the Managers for the House of Commons to give evidence upon the charge in the sixth article, to prove that the rent at which the defendant, Warren Hastings, let the lands [mentioned?] in the said sixth article of charge to Kelleram fell into arrear and was deficient.”
The House will observe that on the question two cases of competence were put: the first, on the competence of Managers for the House of Commons to give the evidence supposed to be offered by them, but which we deny to have been offered in the manner and for the purpose assumed in this question; the second is in a shape apparently more abstracted, and more nearly approaching to Parliamentary regularity, — on the competence of the evidence itself, in the case of a supposed circumstance being supe
radded. The Judges answered only the first, denying flatly the competence of the Managers. As to the second, the competence of the supposed evidence, they are profoundly silent. Having given this blow to our competence, about the other question, (which was more within their province,) namely, the competence of evidence on a case hypothetically stated, they give themselves no trouble. The Lords on that occasion rejected the whole evidence. On the face of the Judges’ opinion it is a determination on a case, the trial of which was not with them, but it contains no rule or principle of law, to which alone it was their duty to speak.
These essential innovations tend, as your Committee conceives, to make an entire alteration in the constitution and in the purposes of the High Court of Parliament, and even to reverse the ancient relations between the Lords and the Judges. They tend wholly to take away from the Commons the benefit of making good their case before the proper judges, and submit this high inquest to the inferior courts.
Your Committee sees no reason why, on the same principles and precedents, the Lords may not terminate their proceedings in this, and in all future trials, by sending the whole body of evidence taken before them, in the shape of a special verdict, to the Judges, and may not demand of them, whether they ought, on the whole matter, to acquit or condemn the prisoner; nor can we discover any cause that should hinder them [the Judges] from deciding on the accumulative body of the evidence as hitherto they have done in its parts, and from dictating the existence or non-existence of a misdemeanor or other crime in the prisoner as they think fit, without any more reference to principle or precedent of law than hitherto they have thought proper to apply in determining on the several parcels of this cause.
