Kitabı oku: «The Works of the Right Honourable Edmund Burke, Vol. 11 (of 12)», sayfa 8

It was from a jealousy of this kind, not at that juncture altogether groundless, and to guard against everything from whence the necessity of an High Steward in the case of an impeachment might be inferred, that the Commons proposed and the Lords readily agreed to the amendment in the Steward's commission which I have already stated. And it hath, I confess, great weight with me, that this amendment, which was at the same time directed in the cases of the five Popish lords, when commissions should pass for their trials, hath taken place in every commission upon impeachments for treason since that time.⁹⁰ And I cannot help remarking, that in the case of Lord Lovat, when neither the heat of the times nor the jealousy of parties had any share in the proceeding, the House ordered, "That the commission for appointing a Lord High Steward shall be in the like form as that for the trial of the Lord Viscount Stafford, as entered in the Journal of this House on the 30th of November, 1680: except that the same shall be in the English language."⁹¹

I will make a short observation on this matter. The order, on the 13th of May, 1679, for varying the form of the commission, was, as appeareth by the Journal, plainly made in consequence of the resolution of the 12th, and was founded on it; and consequently the constant, unvarying practice with regard to the new form goeth, in my opinion, a great way towards showing, that, in the sense of all succeeding times, that resolution was not the result of faction or a blamable jealousy, but was founded in sound reason and true policy. It may be objected, that the resolution of the 12th of May, 1679, goeth no further than to a proceeding upon impeachment. The letter of the resolution, it is admitted, goeth no further. But this is easily accounted for: a proceeding by impeachment was the subject-matter of the conference, and the Commons had no pretence to interpose in any other. But what say the Lords? The High Steward is but as a Speaker or Chairman pro tempore, for the more orderly proceeding at the trials; the appointment of him doth not alter the nature of the court, which still remaineth the Court of the Peers in Parliament. From these premises they draw the conclusion I have mentioned. Are not these premises equally true in the case of a proceeding upon indictment? They undoubtedly are.

It must likewise be admitted, that in the proceeding upon indictment the High Steward's commission hath never varied from the ancient form in such cases. The words objected to by the Commons, Ac pro eo quod officium Seneschalli Angliæ, (cujus præsentia in hac parte requiritur,) ut accepimus, jam vacat, are still retained; but this proveth no more than that the Great Seal, having no authority to vary in point of form, hath from time to time very prudently followed ancient precedents.

I have already stated the substance of the commission in a proceeding in the Court of the High Steward. I will now state the substance of that in a proceeding in the Court of the Peers in Parliament; and shall make use of that in the case of the Earl of Kilmarnock and others, as being the latest, and in point of form agreeing with the former precedents. The commission, after reciting that William, Earl of Kilmarnock, &c., stand indicted before commissioners of gaol-delivery in the County of Surrey, for high treason, in levying war against the King, and that the King intendeth that the said William, Earl of Kilmarnock, &c., shall be heard, examined, sentenced, and adjudged before himself, in this present Parliament, touching the said treason, and for that the office of Steward of Great Britain (whose presence is required upon this occasion) is now vacant, as we are informed, appointeth the then Lord Chancellor Steward of Great Britain, to bear, execute, and exercise (for this time) the said office, with all things due and belonging to the same office, in that behalf.

What, therefore, are the things due and belonging to the office in a case of this kind? Not, as in the Court of the High Steward, a right of judicature; for the commission itself supposeth that right to reside in a court then subsisting before the King in Parliament. The parties are to be there heard, sentenced, and adjudged. What share in the proceeding doth the High Steward, then, take? By the practice and usage of the Court of the Peers in Parliament, he giveth his vote as a member thereof, with the rest of the peers; but, for the sake of regularity and order, he presideth during the trial and until judgment, as Chairman or Speaker pro tempore. In that respect, therefore, it may be properly enough said, that his presence is required during the trial and until judgment, and in no other. Herein I see no difference between the case of an impeachment and of an indictment. I say, during the time of the trial and until judgment; because the court hath, as I observed before, from time to time done various acts, plainly judicial, before the appointment of an High Steward, and where no High Steward hath ever been appointed, and even after the commission dissolved. I will to this purpose cite a few cases.

I begin with the latest, because they are the latest, and were ruled with great deliberation, and for the most part upon a view of former precedents. In the case of the Earl of Kilmarnock and others, the Lords, on the 24th of June, 1746, ordered that a writ or writs of Certiorari be issued for removing the indictments before the House; and on the 26th, the writ, which is made returnable before the King in Parliament, with the return and indictments, was received and read. On the next day, upon the report of the Lords' committees, that they had been attended by the two Chief-Justices and Chief-Baron, and had heard them touching the construction of the act of the 7th and 8th of King William, "for regulating trials in cases of high treason and misprision of treason," the House, upon reading the report, came to several resolutions, founded for the most part on the construction of that act. What that construction was appeareth from the Lord High Steward's address to the prisoners just before their arraignment. Having mentioned that act as one happy consequence of the Revolution, he addeth,—"However injuriously that revolution hath been traduced, whatever attempts have been made to subvert this happy establishment founded on it, your Lordships will now have the benefit of that law in its full extent."

I need not, after this, mention any other judicial acts done by the House in this case, before the appointment of the High Steward: many there are. For the putting a construction upon an act relative to the conduct of the court and the right of the subject at the trial, and in the proceedings preparatory to it, and this in a case entirely new, and upon a point, to say no more in this place, not extremely clear, was undoubtedly an exercise of authority proper only for a court having full cognizance of the cause.

I will not minutely enumerate the several orders made preparatory to the trial of Lord Lovat, and in the several cases I shall have occasion to mention, touching the time and place of the trial, the allowance or non-allowance of council, and other matters of the like kind, all plainly judicial; because the like orders occur in all the cases where a journal of the preparatory steps hath been published by order of the Peers. With regard to Lord Lovat's case, I think the order directing the form of the High Steward's commission, which I have already taken notice of, is not very consistent with the idea of a court whose powers can be supposed to depend, at any point of time, upon the existence or dissolution of that commission.

In the case of the Earl of Derwentwater and the other lords impeached at the same time, the House received and recorded the confessions of those of them who pleaded guilty, long before the teste of the High Steward's commission, which issued merely for the solemnity of giving judgment against them upon their conviction. This appeareth by the commission itself. It reciteth, that the Earl of Derwentwater and others, coram nobis in præsenti Parliamento, had been impeached by the Commons for high treason, and had, coram nobis in præsenti Parliamento, pleaded guilty to that impeachment; and that the King, intending that the said Earl of Derwentwater and others, de et pro proditione unde ipsi ut præfertur impetit', accusat', et convict' existunt coram nobis in præsenti Parliamento, secundum legem et consuetudinem hujus regni nostri Magnæ Britanniæ, audientur, sententientur, et adjudicentur, constituteth the then Lord Chancellor High Steward (hac vice) to do and execute all things which to the office of High Steward in that behalf do belong. The receiving and recording the confession of the prisoners, which amounted to a conviction, so that nothing remained but proceeding to judgment, was certainly an exercise of judicial authority, which no assembly, how great soever, not having full cognizance of the cause, could exercise.

In the case of Lord Salisbury, who had been impeached by the Commons for high treason, the Lords, upon his petition, allowed him the benefit of the act of general pardon passed in the second year of William and Mary, so far as to discharge him from his imprisonment, upon a construction they put upon that act, no High Steward ever having been appointed in that case. On the 2d of October, 1690, upon reading the Earl's petition, setting forth that he had been a prisoner for a year and nine months in the Tower, notwithstanding the late act of free and general pardon, and praying to be discharged, the Lords ordered the Judges to attend on the Monday following, to give their opinions whether the said Earl be pardoned by the act. On the 6th the Judges delivered their opinions, that, if his offence was committed before the 13th of February, 1688, and not in Ireland or beyond the seas, he is pardoned. Whereupon it was ordered that he be admitted to bail, and the next day he and his sureties entered into a recognizance of bail, himself in ten thousand pounds, and two sureties in five thousand pounds each; and on the 30th he and his sureties were, after a long debate, discharged from their recognizance.⁹² It will not be material to inquire whether the House did right in discharging the Earl without giving the Commons an opportunity of being heard; since, in fact, they claimed and exercised a right of judicature without an High Steward,—which is the only use I make of this case.

They did the same in the case of the Earl of Carnwarth, the Lords Widdrington and Nairn, long after the High Steward's commission dissolved. These lords had judgment passed on them at the same time that judgment was given against the Lords Derwentwater, Nithsdale, and Kenmure; and judgment being given, the High Steward immediately broke his staff, and declared the commission dissolved. They continued prisoners in the Tower under reprieves, till the passing the act of general pardon, in the 3d of King George I. On the 21st of November, 1717, the House being informed that these lords had severally entered into recognizances before one of the judges of the Court of King's Bench for their appearance in the House in this session of Parliament, and that the Lords Carnwarth and Widdrington were attending accordingly, and that the Lord Nairn was ill at Bath and could not then attend, the Lords Carnwarth and Widdrington were called in, and severally at the bar prayed that their appearance might be recorded; and likewise prayed the benefit of the act⁹³ for his Majesty's general and free pardon. Whereupon the House ordered that their appearance be recorded, and that they attend again to-morrow, in order to plead the pardon; and the recognizance of the Lord Nairn was respited till that day fortnight. On the morrow the Lords Carnwarth and Widdrington, then attending, were called in; and the Lord Chancellor acquainted them severally, that it appeared by the records of the House that they severally stood attainted of high treason, and asked them severally what they had to say why they should not be remanded to the Tower of London. Thereupon they severally, upon their knees, prayed the benefit of the act, and that they might have their lives and liberty pursuant thereunto. And the Attorney-General, who then attended for that purpose, declaring that he had no objection on his Majesty's behalf to what was prayed, conceiving that those lords, not having made any escape since their conviction, were entitled to the benefit of the act, the House, after reading the clause in the act relating to that matter,⁹⁴ agreed that they should be allowed the benefit of the pardon, as to their lives and liberties, and discharged their recognizances, and gave them leave to depart without further day given for their appearance. On the 6th of December following, the like proceedings were had, and the like orders made, in the case of Lord Nairn.⁹⁵

I observe that the Lord Chancellor did not ask these lords what they had to say why execution should not be awarded. There was, it is probable, some little delicacy as to that point. But since the allowance of the benefit of the act, as to life and liberty, which was all that was prayed, was an effectual bar to any future imprisonment on that account, and also to execution, and might have been pleaded as such in any court whatsoever, the whole proceeding must be admitted to have been in a court having complete jurisdiction in the case, notwithstanding the High Steward's commission had been long dissolved,—which is all the use I intended to make of this case.

I will not recapitulate: the cases I have cited, and the conclusions drawn from them, are brought into a very narrow compass. I will only add, that it would sound extremely harsh to say, that a court of criminal jurisdiction, founded in immemorial usage, and held in judgment of law before the King himself, can in any event whatever be under an utter incapacity of proceeding to trial and judgment, either of condemnation or acquittal, the ultimate objects of every criminal proceeding, without certain supplemental powers derived from the Crown.

These cases, with the observations I have made on them, I hope sufficiently warrant the opinion of the Judges upon that part of the second question, in the case of the late Earl Ferrers, which I have already mentioned,—and also what was advanced by the Lord Chief-Baron in his argument on that question,—"That, though the office of High Steward should happen to determine before execution done according to the judgment, yet the Court of the Peers in Parliament, where that judgment was given, would subsist for all the purposes of justice during the sitting of the Parliament," and consequently, that, in the case supposed by the question, that court might appoint a new day for the execution.

No. II

QUESTIONS referred by the Lords to the Judges, in the Impeachment of Warren Hastings, Esquire, and the Answers of the Judges.—Extracted from the Lords' Journals and Minutes.

First

Question.—Whether, when a witness produced and examined in a criminal proceeding by a prosecutor disclaims all knowledge of any matter so interrogated, it be competent for such prosecutor to pursue such examination, by proposing a question containing the particulars of an answer supposed to have been made by such witness before a committee of the House of Commons, or in any other place, and by demanding of him whether the particulars so suggested were not the answer he had so made?

1788, February 29.—Pa. 418.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the question of law put to them on Friday, the 29th of February last, as follows:—"That, when a witness produced and examined in a criminal proceeding by a prosecutor disclaims all knowledge of any matter so interrogated, it is not competent for such prosecutor to pursue such examination, by proposing a question containing the particulars of an answer supposed to have been made by such witness before a committee of the House of Commons, or in any other place, and by demanding of him whether the particulars so suggested were not the answer he had so made."

1788, April 10.—Pa. 592.

Second

Question.—Whether it be competent for the Managers to produce an examination taken without oath by the rest of the Council in the absence of Mr. Hastings, the Governor-General, charging Mr. Hastings with corruptly receiving 3,54,105 rupees, which examination came to his knowledge, and was by him transmitted to the Court of Directors as a proceeding of the said Councillors, in order to introduce the proof of his demeanor thereupon,—it being alleged by the Managers for the Commons, that he took no steps to clear himself, in the opinion of the said Directors, of the guilt thereby imputed, but that he took active means to prevent the examination by the said Councillors of his servant Cantoo Baboo?

1789, May 14—Pa. 677.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question, in the negative,—and gave his reasons.

1789, May 20.—Pa. 718.

Third

Question.—Whether the instructions from the Court of Directors of the United Company of Merchants of England trading to the East Indies, to Warren Hastings, Esquire, Governor-General, Lieutenant-General John Clavering, the Honorable George Monson, Richard Barwell, Esquire, and Philip Francis, Esquire, Councillors, (constituted and appointed the Governor-General and Council of the said United Company's Presidency of Fort William in Bengal, by an act of Parliament passed in the last session, intituled, "An act for establishing certain regulations for the better management of the affairs of the East India Company, as well in India as in Europe,") of the 29th of March, 1774, Par. 31, 32, and 35, the Consultation of the 11th March, 1775, the Consultation of the 13th of March, 1775, up to the time that Mr. Hastings left the Council, the Consultation of the 20th of March, 1775, the letter written by Mr. Hastings to the Court of Directors on the 25th of March, 1775, (it being alleged that Mr. Hastings took no steps to explain or defend his conduct,) are sufficient to introduce the examination of Nundcomar, or the proceedings of the rest of the Councillors, on said 13th of March, after Mr. Hastings left the Council,—such examination and proceedings charging Mr. Hastings with, corruptly receiving 3,54,105 rupees?

1789, May 21.—Pa. 730.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question, in the negative,—and gave his reasons.

1789, May 27.—Pa. 771.

Fourth

Question.—Whether the public accounts of the Nizamut and Bhela, under the seal of the Begum, attested also by the Nabob, and transmitted by Mr. Goring to the Board of Council at Calcutta, in a letter bearing date the 29th June, 1775, received by them, recorded without objection on the part of Mr. Hastings, and transmitted by him likewise without objection to the Court of Directors, and alleged to contain accounts of money received by Mr. Hastings,—and it being in proof, that Mr. Hastings, on the 11th of May, 1778, moved the Board to comply with the requisitions of the Nabob Mobarek ul Dowlah to reappoint the Munny Begum and Rajah Gourdas (who made up those accounts) to the respective offices they before filled, and which was accordingly resolved by the Board,—ought to be read?

1789, June 17.—Pa. 855.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question, in the negative,—and gave his reasons.

1789, June 24.—Pa. 922.

Fifth

Question.—Whether the paper delivered by Sir Elijah Impey, on the 7th of July, 1775, in the Supreme Court, to the Secretary of the Supreme Council, in order to be transmitted to the Council as the resolution of the Court in respect to the claim made for Roy Rada Churn, on account of his being vakeel of the Nabob Mobarek ul Dowlah,—and which paper was the subject of the deliberation of the Council on the 31st July, 1775, Mr. Hastings being then present, and was by them transmitted to the Court of Directors, as a ground for such instructions from the Court of Directors as the occasion might seem to require,—may be admitted as evidence of the actual state and situation of the Nabob with reference to the English government?

1789, July 2.—Pa. 1001.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question, in the affirmative,—and gave his reasons.

1789, July 7.—Pa. 1030.

Sixth

Question.—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, 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 in arrear immediately after the letting, the evidence would in that case be competent?

1790, April 22.—Pa. 364.

Answer.—The lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question,—"That it is 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, let the lands mentioned in the said sixth article of charge to Kelleram, fell into arrear and was deficient,"—and gave his reasons.

1790, April 27.—Pa. 388.

Seventh

Question.—Whether it be competent for the Managers for the Commons to put the following question to the witness, upon the sixth article of charge, viz.: "What impression the letting of the lands to Kelleram and Cullian Sing made on the minds of the inhabitants of that country"?

1790, April 27.—Pa. 391.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question,—"That it is not competent to the Managers for the Commons to put the following question to the witness, upon the sixth article of charge, viz.: What impression, the letting of the lands to Kelleram and Cullian Sing made on the minds of the inhabitants of that country,"—and gave his reasons.

1790, April 29.—Pa. 413.

Eighth

Question.—Whether it be competent to the Managers for the Commons to put the following question to the witness, upon the seventh article of charge, viz.: "Whether more oppressions did actually exist under the new institution than under the old"?

1790, April 29.—Pa. 415.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question,—"That it is not competent to the Managers for the Commons to put the following question to the witness, upon the seventh article of charge, viz.: Whether more oppressions did actually exist under the new institution than under the old,"—and gave his reasons.

1790, May 4.—Pa. 428.

Ninth

Question.—Whether the letter of the 13th April, 1781, can be given in evidence by the Managers for the Commons, to prove that the letter of the 5th of May, 1781, already given in evidence, relative to the abolition of the Provincial Council and the subsequent appointment of the Committee of Revenue, was false in any other particular than that which is charged in the seventh article of charge?

1790, May 20.—Pa. 557.

Answer.—The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question,—"That it is not competent for the Managers on the part of the Commons to give any evidence on the seventh article of impeachment, to prove that the letter of the 5th of May, 1781, is false in any other particular than that wherein it is expressly charged to be false,"—and gave his reasons.

1790, June 2.—Pa. 634.

Tenth

Question.—Whether it be competent to the Managers for the Commons to examine the witness to any account of the debate which was had on the 9th day of July, 1778, previous to the written minutes that appear upon the Consultation of that date?

1794, February 25.—Lords' Minutes.

Answer.—The Lord Chief-Justice of the Court of Common Pleas delivered the unanimous opinion of the Judges upon the said question,—"That it is not competent to the Managers for the Commons to examine the witness, Philip Francis, Esquire, to any account of the debate which was had on the 9th day of July, 1778, previous to the written minutes that appear upon the Consultation of that date,"—and gave his reasons.

1794, February 27.—Lords' Minutes.

Eleventh

Question.—Whether it is competent for the Managers for the Commons, in reply, to ask the witness, whether, between the time of the original demand being made upon Cheyt Sing and the period of the witness's leaving Bengal, it was at any time in his power to have reversed or put a stop to the demand upon Cheyt Sing,—the same not being relative to any matter originally given in evidence by the defendant?

1794, February 27.—Lords' Minutes.

Answer.—The Lord Chief-Justice of the Court of Common Pleas delivered the unanimous opinion of the Judges upon the said question,—"That it is not competent for the Managers for the Commons to ask the witness, whether, between the time of the original demand being made upon Cheyt Sing and the period of his leaving Bengal, it was at any time in his power to have reversed or put a stop to the demand upon Cheyt Sing,—the same not being relative to any matter originally given in evidence by the defendant,"—and gave his reasons.

1794, March 1.—Lords' Minutes.

Twelfth

Question.—Whether a paper, read in the Court of Directors on the 4th of November, 1783, and then referred by them to the consideration of the Committee of the whole Court, and again read in the Court of Directors on the 19th of November, 1783, and amended and ordered by them to be published for the information of the Proprietors, can be received in evidence, in reply, to rebut the evidence, given by the defendant, of the thanks of the Court of Directors, signified to him on the 28th of June, 1785?

1794, March 1.—Lords' Minutes.

Answer.—Whereupon the Lord Chief-Justice of the Court of Common Pleas, having conferred with the rest of the Judges present, delivered their unanimous opinion upon the said question, in the negative,—and gave his reasons.

1794, March 1.—Lords' Minutes.