The Works of the Right Honourable Edmund Burke Volume XI Part 9

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.

FOOTNOTES:

[82] See Lord Clarendon's commission as High Steward, and the writs and precepts preparatory to the trial, in Lord Morley's case. VII. St. Tr.

[83] See the orders previous to the trial, in the cases of the Lords Kilmarnock, &c., and Lord Lovat, and many other modern cases.

[84] Lords' Journals.

[85] Afterwards Earl of Nottingham.

[86] In the Commons' Journal of the 15th of May it standeth thus:--"Their Lords.h.i.+ps further declared to the committee, that a Lord High Steward, was made _hac vice_ only; that, notwithstanding the making of a Lord High Steward, the court remained the same, and was not thereby altered, but still remained the Court of Peers in Parliament; that the Lord High Steward was but as a Speaker or Chairman, for the more orderly proceeding at the trials."

[87] This resolution my Lord Chief-Baron referred to and cited in his argument upon the second question proposed to the Judges, which is before stated.

[88] This amendment arose from an exception taken to the commission by the committee for the Commons, which, as it then stood, did in their opinion imply that the const.i.tuting a Lord High Steward was necessary.

Whereupon it was agreed by the whole committee of Lords and Commons, that the commission should be recalled, and a new commission, according to the said amendment, issue, to bear date after the order and resolution of the 12th.--_Commons' Journal_ of the 15th of May.

[89] See, in the State Trials, the commissions in the cases of the Earl of Oxford, Earl of Derwent.w.a.ter, and others,--Lord Wintoun and Lord Lovat.

[90] See the proceedings printed by order of the House of Lords, 4th February, 1746.

[91] See the Journals of the Lords.

[92] 3 Geo. I. c. 19.

[93] See sect. 45 of the 3d Geo. I

[94] Lords' Journals.

REMARKS

IN

VINDICATION OF THE PRECEDING REPORT.

The preceding Report was ordered to be printed for the use of the members of the House of Commons, and was soon afterwards reprinted and published, in the shape of a pamphlet, by a London bookseller.

In the course of a debate which took place in the House of Lords, on Thursday, the 22d of May, 1794, on the Treason and Sedition Bills, Lord Thurlow took occasion to mention "a pamphlet which his Lords.h.i.+p said was published by one Debrett, of Piccadilly, and which had that day been put into his hands, reflecting highly upon the Judges and many members of that House. This pamphlet was, he said, scandalous and indecent, and such as he thought ought not to pa.s.s unnoticed. He considered the vilifying and misrepresenting the conduct of judges and magistrates, intrusted with the administration of justice and the laws of the country, to be a crime of a very heinous nature, and most destructive in its consequences, because it tended to lower them in the opinion of those who ought to feel a proper reverence and respect for their high and important stations; and that, when it was stated to the ignorant or the wicked that their judges and magistrates were ignorant and corrupt, it tended to lessen their respect for and obedience to the laws themselves, by teaching them to think ill of those who administered them." On the next day Mr.

Burke called the attention of the House of Commons to this matter, in a speech to the following effect.

Mr. Speaker,--The license of the present times makes it very difficult for us to talk upon certain subjects in which Parliamentary order is involved. It is difficult to speak of them with regularity, or to be silent with dignity and wisdom. All our proceedings have been constantly published, according to the discretion and ability of individuals out of doors, with impunity, almost ever since I came into Parliament. By usage, the people have obtained something like a prescriptive right to this abuse. I do not justify it; but the abuse is now grown so inveterate that to punish it without previous notice would have an appearance of hards.h.i.+p, if not injustice. The publications I allude to are frequently erroneous as well as irregular, but they are not always so; what they give as the reports and resolutions of this House have sometimes been given correctly. And it has not been uncommon to attack the proceedings of the House itself under color of attacking these irregular publications. Notwithstanding, however, this colorable plea, this House has in some instances proceeded to punish the persons who have thus insulted it. You will here, too, remark, Sir, that, when a complaint is made of a piratical edition of a work, the authenticity of the original work is admitted, and whoever attacks the matter of the work itself in these unauthorized publications does not attack it less than if he had attacked it in an edition authorized by the writer.

I understand, Sir, that in a place which I greatly respect, and by a person for whom I have likewise a great veneration, a pamphlet published by a Mr. Debrett has been very heavily censured. That pamphlet, I hear, (for I have not read it,) purports to be a Report made by one of your Committees to this House. It has been censured, as I am told, by the person and in the place I have mentioned, in very harsh and very unqualified terms. It has been there said, (and so far very truly,) that at all times, and particularly at this time, it is necessary, for the preservation of order and the execution of the law, that the characters and reputation of the Judges of the Courts in Westminster Hall should be kept in the highest degree of respect and reverence; and that in this pamphlet, described by the name of a libel, the characters and conduct of those Judges upon a late occasion have been aspersed, as arising from ignorance or corruption.

Sir, combining all the circ.u.mstances, I think it impossible not to suppose that this speech does reflect upon a Report which, by an order of the Committee on which I served, I had the honor of presenting to this House. For anything improper in that Report I am responsible, as well as the members of the Committee, to this House, and to this House only. The matters contained in it, and the observations upon them, are submitted to the wisdom of the House, that you may act upon both in the time and manner that to your judgment may seem most expedient,--or that you may not act upon them at all, if you should think that most expedient for the public good. Your Committee has obeyed your orders; it has done its duty in making that Report.

I am of opinion, with the eminent person by whom that Report is censured, that it is necessary at this time very particularly that the authority of Judges should be preserved and supported. This, however, does not depend so much upon us as upon themselves. It is necessary to preserve the dignity and respect of all the const.i.tutional authorities.

This, too, depends in part upon ourselves. It is necessary to preserve the respect due to the House of Lords: it is full as necessary to preserve the respect due to the House of Commons, upon which (whatever may be thought of us by some persons) the weight and force of all other authorities within this kingdom essentially depend. If the power of the House of Commons be degraded or enervated, no other can stand. We must be true to ourselves. We ought to animadvert upon any of our members who abuse the trust we place in them; we must support those who, without regard to consequences, perform their duty.

With regard to the matter which I am now submitting to your consideration, I must say for your Committee of Managers and for myself, that the Report was deliberately made, and does not, as I conceive, contain any very material error, nor any undue or indecent reflection upon any person or persons whatever. It does not accuse the Judges of ignorance or corruption. Whatever it says it does not say calumniously.

That kind of language belongs to persons whose eloquence ent.i.tles them to a free use of epithets. The Report states that the Judges had given their opinions secretly, contrary to the almost uninterrupted tenor of Parliamentary usage on such occasions. It states that the mode of giving the opinions was unprecedented, and contrary to the privileges of the House of Commons. It states that the Committee did not know upon what rules and principles the Judges had decided upon those cases, as they neither heard their opinions delivered, nor have found them entered upon the Journals of the House of Lords. It is very true that we were and are extremely dissatisfied with those opinions, and the consequent determinations of the Lords; and we do not think such a mode of proceeding at all justified by the most numerous and the best precedents. None of these sentiments is the Committee, as I conceive, (and I feel as little as any of them,) disposed to retract, or to soften in the smallest degree.

The Report speaks for itself. Whenever an occasion shall be regularly given to maintain everything of substance in that paper, I shall be ready to meet the proudest name for ability, learning, or rank that this kingdom contains, upon that subject. Do I say this from any confidence in myself? Far from it. It is from my confidence in our cause, and in the ability, the learning, and the const.i.tutional principles which this House contains within itself, and which I hope it will ever contain,--and in the a.s.sistance which it will not fail to afford to those who with good intention do their best to maintain the essential privileges of the House, the ancient law of Parliament, and the public justice of this kingdom.

No reply or observation was made on the subject by any other member, nor was any farther notice taken of it in the House of Lords.

SPEECHES

IN

THE IMPEACHMENT

OF

WARREN HASTINGS, ESQUIRE,

LATE GOVERNOR-GENERAL OF BENGAL.

SPEECH IN GENERAL REPLY.