by Edmund Burke
The answer of Mr. Hastings to that part of the 17th article states: —
“And the said Warren Hastings says, that in or about the month of July, in the year 1783, a paper was received, inclosed in a letter to the Governor-General and Council, from Mr. Bristow, purporting to be a translation of a letter from three brothers of the said Vizier, in which they did represent themselves to be in distress for dry bread and clothes; but whether such distress actually existed, and was relieved by the said Bristow, the said Warren Hastings cannot set forth.
“And the said Warren Hastings further says, that some time in the month of September, 1784, the said Warren Hastings, being then at Benares, did receive information that Mirza Hyder Ali was arrived there, and the said Warren Hastings, not knowing before that time that there was any such person, did write to the Nabob Vizier, to the purport or effect following:— ‘A few days since I learnt that a person called Mirza Hyder Ali was arrived at Benares, and calls himself a son of the deceased Nabob Sujah ul Dowlah, and I was also told that he came from Fyzabad; as I did not know whether he left Fyzabad with or without your consent, I therefore did not pay him much attention, and I now trouble you to give me every information on this subject, how he came here, and what your intentions are about him; he remains here in great distress, and I therefore wish to know your sentiments.’
“And the said Warren Hastings further says, that, having received an answer from the said Vizier, he did, on or about the 13th of October, 1784, inclose the same in a letter to the said Mirza, of which letter the following is a copy:— ‘An answer is arrived to what I wrote on your account to the Nabob Vizier, which I inclose to you: having read it, you will send it back. I conceive you had better go to the Nabob Vizier’s presence, who will certainly afford you protection and assistance. I will write what is proper to carry with you to the Nabob, and it will in every respect be for your good; whatever may be your intention on this head, you will write to me.’
“And the said Warren Hastings submits, that it was no part of his duty as Governor-General to interfere with the said Vizier on behalf of the said Mirza, or to obtain from the said Vizier any specific assurances on the subject.”
Continuation of the 17th article of the charge: —
“That, in order to avoid famine at home, another of the said Nabob’s brothers, by name Mirza Jungli, was under the necessity of flying from his native country, and did seek protection from a certain Mahometan lord called Mirza Shuffee Khân, then prime-minister of the Mogul, from whom he did go to the camp of the Mahratta chief Mahdajee Sindia, where he did solicit and obtain a military command, together with a grant of lands, or jaghire, for the subsistence of himself, his family, and followers; but wishing again to be received under the protection of the British government, the said Mirza Jungli, in 1783, did apply to the said Resident Bristow, through David Anderson, Esquire, then on an embassy in the camp of the said Sindia; and in consequence of such application, the said Bristow, sensible of the disgrace which the exile of the said Mirza Jungli reflected both on the said Nabob of Oude and the British nation, did negotiate with the said Nabob and his ministers for the return of the said Mirza Jungli, and for the settlement and regular payment of some proper allowance for the maintenance of the said Mirza Jungli; but the allowance required was ultimately refused; and although the whole of the transactions aforesaid were duly represented to the said Warren Hastings by the said Anderson and by the said Bristow, and although he had himself received, so early as the 23d of August, 1782, a letter from the Vizier, grievously complaining of the cruel and extortious demands made upon him by the said Warren Hastings, in which letter he did expressly mention the flight of his brothers, and the distresses of the women of his late father, who he said were all as his mothers, and that his said brothers, from the resumption of their jaghires, were reduced to great affliction and distress, and he did attribute the said flight of some of his brethren, and the distresses of the rest, and of the women who stood in a species of maternal relation to him, as owing to the aforesaid oppressive demands, yet he, the said Warren Hastings, did cruelly, inhumanly, and corruptly decline to make any order for the better provision of any of the said eminent family, or for the return of the said prince, who had fled from his brother’s court to avoid the danger of perishing by famine.”
Answer of Mr. Hastings to that part of the charge: —
“And the said Warren Hastings further says, that he was informed that Mirza Jungli, in the said article also mentioned, did leave his native country in distress, and did go to Mirza Shuffee Khân, in the said article also mentioned; and the said Warren Hastings likewise admits he was informed that the said Mirza Jungli did afterwards leave the said Mirza Shuffee Khân, and repair to the camp of Mahdajee Sindia, with a view of obtaining some establishment for himself and followers.
“And the said Warren Hastings further says, that in certain letters written by David Anderson, Esquire, and John Bristow, Esquire, it was represented that the said Mirza Jungli did apply to the said Bristow, through the said Anderson, then on an embassy in the camp of the said Sindia, and that in consequence thereof the said Bristow did, amongst other things, apply to the said Nabob Vizier for a certain allowance to be made for the said Mirza, and for the regular payment thereof, and that a certain allowance was accordingly settled by the said Vizier on the said Mirza; and the said Warren Hastings says, that information of the above transactions was transmitted to the Board of Council, and that a letter from the said Vizier was received on the 23d of August, 1782, containing certain representations of the distresses of himself and his family; and he admits that no order was made by him, the said Warren Hastings, for the provision of any of the said family, or for the return of the said Mirza; but the said Warren Hastings denies that he was guilty of any cruelty, inhumanity, or corruption, or of any misconduct whatsoever, in the matters aforesaid.”
Continuation of the charge: —
“That some time in or about the month of December, 1783, the Nabob Bahadur, another of the brothers of the said Nabob of Oude, did represent to the said Bristow, that he, the said Nabob Bahadur, had not received a farthing of his allowance for the current year, and was without food; and being wounded by an assassin, who had also murdered his aunt in the very capital of Oude, the said Nabob Bahadur had not a daum to pay the surgeon, who attended him for the love of God alone. That at or about the period of this said representation the said Bristow was recalled, and the said Warren Hastings proceeded up to Lucknow, but did not inquire into the said representations transmitted by the said Bristow to Calcutta, nor did order any relief.”
Mr. Hastings’s answer to the part of the charge last read: —
“And the said Warren Hastings further says, that on the 29th of January, 1784, after the recall of the said Bristow, he, the said Bristow, did transmit to the Governor-General and Council two letters, one dated 28th of December, 1783, the other 7th of January, 1784, purporting to be written by the said Nabob Bahadur, addressed to him, the said Bristow, to the effect in the said article stated; and the said Warren Hastings admits, that, when at Lucknow, he did not institute any inquiry into the supposed transaction in the said 17th article stated, or make any order concerning the said Bahadur, and he denies that it was his duty so to do.”
Here is the name of this Nabob from a list of the jaghiredars stated by Mr. Purling, page 485 printed Minutes. Amongst the names of jaghiredars, the times when granted, and the amount of the jaghires, there occurs that of the Nabob Bahadur, with a grant of a jaghire of the amount of 20,000 rupees.
[The Lord Chancellor here remarked, that what had been just read was matter of the 17th article of the charge and parts of the answer to it, and that, upon looking back to the former proceedings, it has escaped his attention, if any matter contained in the 17th article had been made matter of the charge; that it therefore seemed to him that it could not be brought in upon a reply, not having been made matter of the charge originally.
Mr. Burke. My Lor
ds, I have to say to this, that I believe you have heard these facts made matter of charge by the House of Commons, that I conceive they have been admitted by the prisoner, and that the Commons have nothing to do with the proofs of anything in their charge which is fully and in terms admitted. The proofs which they have produced to your Lordships were upon matters which were contested; but here the facts are admitted in the fullest manner. We neither have abandoned them, intended to abandon them, or ever shall abandon them; we have made them, as a charge, upon record; the answers to them have been recorded, which answers are complete admissions of every fact in the charge.
Lord Chancellor. I do not make myself understood. The objection is not that there has not been evidence given upon the 17th article, but at the close of the case on the part of the Managers for the House of Commons no mention having been made of the matter contained in the 17th article, that therefore, although it may all have been admitted by the answer to be true, yet in justice, if from that answer you ground the charge, it is necessary the defendant should be heard upon it.
Mr. Burke. If your Lordships choose that the defendant shall be heard upon it, we have no kind of objection, nor ever had, or proposed an objection to the defendant being heard upon it. Your Lordships know that the defendant’s counsel value themselves upon having abandoned their defence against certain parts of the charge; your Lordships know that they declared that they broke off thus in the middle of their defence in order to expedite this business.
Lord Chancellor. Referring to the proceedings, I think it a matter perfectly clear, that, in the course of the charge, after certain articles had been gone through, the Managers for the Commons closed the case there, leaving therefore all the other articles, excepting those that had been discussed, as matters standing with the answers against them, but not insisted upon in making out the charge. Of course, therefore, if the defendant had gone into any of those articles, the defendant must have been stopped upon them, because he would then have been making a case in defence to that which had not been made a case in the prosecution. The objection, therefore, is not at all that no evidence has been examined. To be sure, it would be an answer to that to say, you are now proceeding upon an admission; but even upon those facts that are admitted, (if the facts are admitted that are insisted upon as matter in charge,) that should come in the original state of the cause, and the defendant in common justice must be heard upon that, and then, and then only, come the observations in reply.
Mr. Burke. We do not know, not are informed, that any charge, information, or indictment, that is before the court, and upon record, and is not denied by the defendant, does not stand in full force against him. We conceive it to be so; we conceive it to be agreeable to the analogy of all proceedings; and the reason why we did not go into and insist upon it was, that, having a very long cause before us, and having the most full and complete admission upon this subject, we did not proceed further in it. The defendant defends himself by averring that it was not his duty. It was not our business to prove that it was his duty. It was he that admitted the facts assumed to be the foundation of his duty; the negative he was bound to prove, and he never offered to prove it. All that I can say upon this point is, that his delinquency in the matter in question appeared to us to be a clear, distinct case, — to be a great offence, — an offence charged upon the record, admitted upon the record, and never by us abandoned. As to his defence having been abandoned, we refer your Lordships to the last petition laid by him upon your table, (that libellous petition, which we speak of as a libel upon the House of Commons,) and which has no validity but as it asserts a matter of fact from the petitioner; and there you will find that he has declared explicitly, that, for the accommodation and ease of this business, and for its expedition, he did abandon his defence at a certain period.
Lord Chancellor. A charge consisting of a variety of articles in their nature (however connected with each other in their subject, but in their nature) distinct and specific, if only certain articles are pressed in the charge, to those articles only can a defence be applied; and all the other articles, that are not made matter of charge originally, have never, in the course of any proceeding whatever, been taken up originally in reply.
Mr. Burke. With great respect to your Lordship’s judgment, we conceive that the objection taken from our not having at a certain period argued or observed upon the prisoner’s answer to the articles not insisted upon is not conclusive; inasmuch as the record still stands, and as our charge still stands. It was never abandoned; and the defendant might have made a justification to it, if he had thought fit: he never did think fit so to do. If your Lordships think that we ought not to argue upon it here in our reply, because we did not argue upon it before, — well and good; but we have argued and do argue in our reply many things to which he never gave any answer at all. I shall beg leave, if your Lordships please, to retire with my fellow Managers for a moment, to consult whether we shall press this point or not. We shall not detain your Lordships many minutes.
(The Managers withdrew: in a few minutes the Managers returned, again into the Hall.)
Mr. Burke. My Lords, the Managers have consulted among themselves upon this business; they first referred to your printed proceedings, in order to see the particular circumstance on which the observation of your Lordship is founded; we find it thus stated:— “Then the Managers for the Commons informed the Lords, that, saving to themselves their undoubted rights and privileges, the Commons were content to rest their charge here.” We rested our charge there, not because we meant to efface any precedent matter of the charge which had been made by us, and of which the facts had been admitted by the defendant, but, simply saving our rights and privileges, that is, to resume, (and to make new matter, if we thought fit,) the Commons were content to rest the charge there.
I have further to remark to your Lordships, that the counsel for the defendant have opened a vast variety of matter that is not upon record, either on our part or on theirs, in order to illustrate and to support their cause; and they have spoken day after day upon the principles on which their defence was made. My great object now is an examination of those principles, and to illustrate the effects of these principles by examples which are not the less cogent, the less weighty, and the less known, because they are articles in this charge. Most assuredly they are not. If your Lordships recollect the speeches that were made here, you know that great merit was given to Mr. Hastings for matters that were not at all in the charge, and which would put us under the greatest difficulties, if we were to take no notice of them in our reply. For instance, his merits in the Mahratta war, and a great mass of matter upon that subject, were obliquely, and for other purposes, brought before you, upon which they argued. That immense mass of matter, containing an immense mass of principles, and which was sometimes supported by alleged facts, sometimes by none, they have opened and argued upon, as matter relative to principle. In answer to their argument, we propose to show the mischiefs that have happened from the mischievous principles laid down by Mr. Hastings, and the mischievous consequences of them.
If, however, after this explanation, your Lordships are of opinion that we ought not to be allowed to take this course, wishing to fall in with your Lordships’ sentiments, we shall abandon it. But we will remind your Lordships that such things stand upon your records; that they stand unanswered and admitted on your records; and consequently they cannot be destroyed by any act of ours, but by a renunciation of the charge, which renunciation we cannot make, because the defendant has clearly and fully admitted it to be founded in fact. We cannot plead error; we cannot retract it. And why? Because he has admitted it. We therefore only remind your Lordships that the charge stands uncontradicted; and that the observation we intended to make upon it was to show your Lordships that the principles upon which he defends all such conduct are totally false and groundless. But though your Lordships should be of opinion that we cannot press it, yet we cannot abandon it; it is not in your power, it is not
in our power, it is not in his power to abandon that charge. You cannot acquit him of that charge; it is impossible. If, however, your Lordships, for the accommodation of business, method of proceedings, or any circumstance of that kind, wish we should say no more upon the subject, we close the subject there. Your Lordships are in possession both of the charge and the admission; and we wish, and we cannot wish better than, to leave it as it is upon the record.
The Lord Chancellor here said, — The opinion of the Lords can only be with me matter of conjecture. I certainly was not commanded by the House to state the observation that had occurred to me; but in the position in which it now stands, I feel no difficulty in saying, as my own judgment, that nothing can be matter in reply that does not relate to those articles that were pressed in the original charge; and therefore, in this position of the business of reply, you cannot go into new matter arising out of other articles that were not originally insisted upon.
