of the same import with that paper has found its way beyond that Board, and has extended to England, and even got into the reports of your committees, I may be indulged in complaining (without giving offence) of the effect of that tenderness to the judges which would not permit that paper to remain on the proceedings. Had it remained, the Directors and his Majesty's ministers would have seen what were the particular topics which had been censured, and been thereby enabled to judge of the candour and propriety of reviving and propagating indirectly by secret minutes the very same accusations which they had publicly condemned as a libel. Had it remained on the record, those accusations could never have been made. Having, I hope, sufficiently obviated any ground that can be taken to support these charges from public opinion or that of the majority of the government of Bengal, the only remaining ground to be considered is, the opinion of the Directors in their letter of 19th November 1777. At what time, and under what influence, that letter was written, I have only learnt from distant report; the truth of which can only be known by those who were at that time in England. To this letter I oppose the instructions sent out by the Court of Directors with the charter of 26 Geo. 2, already alluded to, and their letter of the 19th February 1766, now lying on the table. In the letter of 1777, they are alarmed that a native of high rank in Bengal had been tried for an offence not capital by the laws of the country where the offence was committed. Here, as in this article, by confounding the case of an inhabitant of Calcutta with that of a native inhabitant of Bengal, the proposition is mis-stated, and it is asserted not truly, that the offence was not capital by the laws of the country in which it was committed; but had they attended to their own instructions in 1756, to the case of Radachund Metre, transmitted to them in 1765, and more particularly to their own letter of 1766, in which they direct how an indictment should be formed on this statute, they must have known the offence to be capital by the laws of Calcutta, the country in which it was committed. It will even appear, by the proceedings in Radachund's case, that one of the Directors [Mr. Robert Gregory] who signed that letter of November 1777, was, in 1765, one of [VOL. XXVI.] the grand jury which found the indictment on this very statute, that caused his alarms for the first time in 1777. That letter says, "that the statute might have been adopted by the former courts:" It was not only adopted by the courts, but sanctioned by them. They call the Secretary's particular attention to the consequences of declaring all the criminal laws in force in Bengal, and assert "the judges must so do, if they are consistent with themselves." They mention "the endless and almost inexplicable distinctions by which certain actions are or are not burglary." They ask, Whether, "certain offenders can be transported to his Majesty's colonies?" and, Whether a man should be burnt in the hand for bigamy? and then conclude in these words: "If it were legal to try, condemn, and execute Nundcomar on the statute of George 2., it must, we conceive, be equally legal to try, convict, and punish the Soubahdar of Bengal and all his court for bigamy on the statute of James 1." Their calling for this attention, or their apprehensions about the almost inexplicable laws of burglary, must appear extraordinary, when they themselves have pointed out the mode of carrying those very inexplicable laws into execution. The question with regard to transportation might be resolved from the same instructions by them. They inform the judges of their criminal courts, that transportation was a punishment which they, were to inflict. This went beyond any thing which has been done by the Supreme Court; for neither those laws which the Directors call capital laws against burglary, nor the sentence of transportation, have ever by the Supreme Court been carried into practice, even in Calcutta. But the Directors had ordered them to be enforced. The consequence of trying the Soubah and all his court for bigamy did not surely arise from cool argument. They were no objects of the court's jurisdiction for any crime. To terrify the Hindoo and Mussulmaun inhabitants, and to raise in them an abhorrence against the Supreme Court, it had been industriously and seditiously propagated among them, that the law of bigamy would be enforced against them. This had been obviated to their complete satisfaction in the answer given by the Court to their addresses. After this, when the natives had ceased to be under apprehensions, this letter re[4 X] echoes the same suggestion to raise alarms | directed that statute to be enforced, were in the minds of men in this country. So alarmed, in 1777, that it had been enfar from its being lawful to enforce it in forced;-though the majority of the Calcutta, I humbly suggest to better council, by a public act, had burnt a lawyers than myself, Whether there could paper, as libellous and false, in 1775, yet be a legal conviction on that statute, even had by subsequent secret representations in London, in the case of a second mar- given cause to believe, that the contents riage of a Mussulmaun or Hindoo, if that of that paper so condemned contained marriage had been solemnized in a country their real sentiments;-the Parliament of where a plurality of wives is lawful or England, judging coolly and dispastolerated, and where the marriage had sionately, with the whole evidence before been solemnized by the rites of their own it, was so far from being of opinion that religion, such marriage not having given the judges had acted criminally on the. rise to such exclusive claims, either of the trial, or rashly, in not granting the wife or children, as are created by an respite, that although strongly urged to English marriage and sanctioned by take away the power of respite from them, English laws? it has affirmed the act of the court, by refusing to make it part of the statute in 1781, made to limit the jurisdiction of the court, and has thereby continued that power in the judges to the present time. I now appeal to the House, Whether there be any circumstances attending the opinion of the Directors in 1777, or in the times themselves, which ought so far to overbalance their deliberate opinions in 1756 and 1766 (which must, in conformity to their ordinary practice, have been founded on the best legal advice), as to authorize it to weigh against me as a ground for supporting this charge? But I have a greater authority, which I hope I shall not be thought presumptuous in claiming-it is that of the Parliament of Great Britain. Such was the temper of the times in Calcutta, when in 1780 the petition of the British inhabitants was presented to Parliament, that it is observable the name of the gentleman from whom that petition was nominated, Mr. Samuel Touchett, was one of the jury on the trial of Nundcomar, and one of those who, though solicited, refused to apply for a respite; yet it is an object of that petition to transfer the power of respiting from the judges to the Governor-general and Council, with a clear reference to this case. In this factious concussion of sentiments, though a Director, who in 1765 had himself found an indictment on the 2d George 2, c. 25, did in 1777 sign a letter, as being alarmed that the same statute had been put in execution in 1775; though a juryman, who in 1775 had found a verdict on that statute, and was so clearly convinced of the propriety of carrying it into execution, that, though strongly solicited, he absolutely refused to apply for a respite, did nevertheless petition, in 1780, to have the power of respiting transferred from the judges, for enforcing that very verdict; though the Directors, who in 1766 had specifically Having been charged as an individual, I have thus far defended myself as an individual; and submit that my defence is sufficient, though the acts ascribed to me alone had in truth been my separate individual acts. But though called to answer as for acts done by me singly, those acts not only were not, but could not, have been done by me individually: I was one member sitting in a court, consisting of four members; all the four members concurred in the acts imputed to me; my voice singly and by itself could have had no operation; I might have been over-ruled by a majority of three to one. I was not more concerned in the proceedings than any other judge; I was less so than two [Justices Le Maistre and Hyde]. Informations had been laid against the criminal before two of the judges, who, by committing him for felony, had applied this law to his case without my knowledge or privity. I was, indeed, applied to by the council as to the mode of his confinement; I had no right to revise the acts of the judges, their authority was equal to mine; I did what humanity required; I made the strictest inquiries of the Pundits, as to the effect of his imprisonment on his cast and religion; I learned they could not be hurt. I gave directions to the sheriff, that he should have the best accommodations the gaol would afford; the gaoler and his family quitted their apartments, and gave them up to him; I directed that every indulgence, consistent with his safe enstody, should be granted him. These only were 1 my individual acts, and these appear on the report of your committee. If it had been just so to do, it was not I, but the court, which must have afforded protection to the criminal, because the accuser of Mr. Hastings; it was not I, but the court, that must have quashed the indictment; it was not I, but the Court, which retained the prosecution; had sir Robert Chambers been over-ruled, it was not I, but the court, that could have over-ruled him; it was not I, but the whole court, that rejected the appeal (if there was an appeal), that refused the respite, and carried the sentence into execution. . All signed the calendar; I executed no act of authority as a magistrate, but sitting in open court, assisted by all the judges; even those acts which are peculiarly objected to me, as mine individually, though I was the proper channel of the court to pronounce them, are not my individual acts. As chief justice, I presided in the court, was the mouth of the court; all questions put, or observations made by me, were with the judges sitting on my right hand and on my left; those questions, and those observations, were not mine, but the questions and observations of the court. I did not presume to make observations in my summing up to the jury, without having first communicated with the judges, and taken their unanimous opinion on every article, the summing up therefore the evidences, and the observations made on the evidence to the jury, were not my summing up, and my observations, but those of the court. Had I not communicated with the judges, yet their sitting by and approving them would have made them the acts of the court. The opinion of a court of justice is collected from the mouth of the chief justice and the silence of the other judges, as well as from the records of the court; and in this case more strongly, for records may be, and frequently are, the acts of a court divided in opinion; a judgment delivered by the chief justice alone, must be the unanimous sense of the court. As no act is imputable solely to me, so there is no motive in the whole charge assigned for my conduct that is not equally applicable to every other judge; nor is there one allegation that exonerates the other judges, and applies them specifically to me; if they are true with regard to me, they are true as applied to every judge of the court, The notoriety of the injustice of the proceedings applies to all, and gives an equal ground of conviction, that all the judges were in a combination to sacrifice an innocent man, for the purpose of screening Mr. Hastings from justice; all must have shown an equally determined purpose against the life of the criminal; all had equal knowledge of the accusation, the proceedings in council, and the conduct of Mr. Hastings; all knew equally the credit of the witnesses, the conduct of Kissen Juan Doss, and the infamy of the unnamed witness. There is no stage of the business where they are not all as much implicated in the motives as I could be; yet I alone am called to answer, whilst they, if this charge be true, are administering justice in Bengal, notoriously branded with infamy, and still judging on the lives of men with hands stained with blood. Though I say this as necessary to my defence, I most solemnly protest, and most anxiously request, that it may clearly be understood that I do not entertain the most distant wish that any judge of the Supreme Court should meet with the same fate which I have experienced, after long and faithful services in so inhospitable a climate in their decline of life, and be dragged from their tribunals, to appear as criminals at this bar. Respect for their character, and friendship for their persons, whom, in my conscience, I know not to deserve so harsh a treatment, would reprobate so unjust and so malignant a wish. But I may, without prejudice to them, deplore, that though aided by their reasons for concurring in the proceedings of the court, thus separated from them, and called upon as I am, I cannot be armed by their reasons in my defence. Though my arguments feebly enforced may fail of success, yet, if urged more forcibly by them, and with such addition of others as their learning and ability might supply, they might operate to conviction on the minds of my judges; and should I be so unfortunate as to be thought impeachable for these joint acts, they on better reasons shown may be exculpated. Had they been joined with me, I should have had a right to avail myself of their reasons as well as my own. It is hardly conceivable that any man, whose constant habits of life have been known to be such as mine have been (and there are not wanting members in this House who know both how and with whom the earlier part of my life, down to the time I quitted this country, had been spent): that I, a man, I will assume to say, who left this country with a character at least unimpeachable, who maintained that character till May 1775, should, in the course of the next month, have been so totally lost to every principle of justice, every duty of office, every sense of shame, every feeling of humanity, to have been so deeply immersed and hardened in iniquity, as to be able deliberately to plan and steadily to perpetrate murder, with all the circumstances with which it is here charged and aggravated. Nemo repente fuit turpissimus. But if the minds of men, besieged by constant repetitions of the same slander, laboured into them daily and hourly, by perpetual and unremitting libels, assailed by base whispers in private, and the malicious clamours of faction in public, can, with regard to me an individual, have been prepared to admit the belief of a fact so strange and so unnatural; yet had four judges been now ranged at this bar, all men of unimpeachable characters, down to the same period of time, all charged with the same sudden loss of virtue, and violent precipitation into the most abandoned guilt, all charged with the same deliberate purpose, the same steady, cool, unrelenting execution of so foul a crime; it would have struck the eyes, as well as the reason, of the House: common sense would have revolted at it; it must have been pronounced impossible. After what I have disclosed to the House, I trust in my single case also it will be pronounced equally impossible. I have been too long; I have had great indulgence, I fear I have abused it too much; I will make no recapitulation; but if the judgment was legal, if no justifiable grounds could be assigned, either of grievance to allow an appeal, or of favour to recommend to mercy; if the matters of the reports do not supply competent evidence to support the article; if the public opinion formed on libels, and misled by false authorities is no ground for impeachment; if the opinions of the Court of Directors, and the majority of the council in Bengal, fairly discussed, operate not in support, but to the defeat of this accusation; if I am accused of no act but what was a judicial joint act of the whole court, consisting of four judges; if no act is charged on me but what is equally chargeable on the other three judges: if no motive is imputed to me but what is equally imputable to all the judges; if the whole was in the ordinary course of justice, and there be, after every scrutiny, no evidence of any undue motives: I now, Sir, finally submit with perfect resignation to the judgment of the House, whether, at the distance of thirteen years, during nine of which, after the commission of the supposed offence, I have been permitted to preside in the Supreme Court, when, by lapse of time, I must necessarily have been deprived of material living evidence, and by just inference, from the having been called to answer a specific charge of a less heinous nature, for a fact subsequent to this, by seven years, I have been prevented from bringing evidence from Bengal, under all the circumstances with which I have fatigued the House, it be consistent with its candour, wisdom, and justice, to put me alone, at the bar of the House of Lords, to answer criminally for the judicial acts of an unanimous court. to the first Charge, sir Elijah was directed Having now gone through his Answer to withdraw. learned gentleman must have been greatly Mr. Pitt then proposed, that as the fatigued by so long a defence, and as the of sir Elijah Impey be adjourned to House was exhausted, the farther hearing Thursday. appeared ready to go on, but throughout be called in, and asked whether he had the Speaker asked him if he had any mi- when they came to proceed upon the busi- 1 Mr. Pitt desired that, in the commencement of a business of such a nature, no insinuation of that kind might be suggested against a person who had been at the bar on his defence. Mr. Fox said, it was perfectly fair and candid in his right hon. friend, at that early period, to state a matter, which, if suffered to pass unnoticed, it might afterwards be deemed rather invidious to mention. It was undoubtedly to be lamented that sir Elijah had not a written copy of what he had said to present at the table. Mr. Pitt said, he had not questioned the candour of the right hon. gentleman; but had conceived what he had said, as amounting to a declaration that sir Elijah had no defence fit to put upon the table, and such an insinuation as that, in so early a stage of the business, appeared to be too invidious for him to let it pass without a comment. Mr. Burke said, that the right hon. gentleman had shown great heat, even in the moment whilst he recommended coolness. He had regretted, and did regret, that there was no written defence to oppose to written charges, more especially when that defence began with an extract from one of the reports of their Committees, which had been argued that the Committee thought the evidence not good evidence. Mr. Burke mentioned the great pains that the Committees had taken, and said though he should be ready to hear any thing sir Elijah had to say, his mind was in a manner made up upon the subject, and not quite a carte blanche. Mr. Pitt said, the right hon. gentleman had now told them, what he was surprised indeed to hear him say, viz. that his mind was completely made up upon the subject, so that whether the defence was written or not, it mattered not to the right hon. gentleman, since his mind was finally and irrevocably made up. Mr. Burke charged Mr. Pitt with having been extremely personal, and having grossly misrepresented his words. He had not said that his mind was totally made up, so as to be capable of receiving no conviction from evidence: but it would be strange indeed, if after having been instrumental in moving the recall of sir Elijah from Bengal, and on another occasion solicitous that the right hon. gentleman should prevent his being permitted to return to India while his conduct remained uninquired into by that House, his mind should not be pretty well made up upon the subject. Mr. Pitt said, he had not misrepresented the right hon. gentleman so much as he had misrepresented himself; for nothing could be more different than his former words, and the explanation which he had just given of them. Mr. Fox denied that his right hon. friend had used the words imputed to him. He had neither said, his mind was made up completely, nor finally, nor irrevocably, but that his mind was in a manner made up; and he had added, more fully to explain his meaning, that it was not quite a carte blanche. Mr. Fox said, he should all through the proceeding argue upon the prepossession that sir Elijah was guilty; and therefore, although the not giving in a defence in writing did not amount to a proof, or any thing like it, of guilt, it was fair to consider it as a prepossession of guilt. Mr. Kenrick said, he could account for the defence not being in writing. To his knowledge, sir Elijah had not entertained the idea of coming to the bar but a few hours before he had presented the petition, desiring that sir Elijah might be heard. The farther hearing of sir Elijah Impey was adjourned to Thursday. Feb. 7. The order of the day being read, for the farther hearing of sir Elijah Impey, Mr. Francis rose for the purpose of making a motion, previous to sir Elijah's being called in. He observed that this gentleman had, on the preceding Monday, produced and read a paper purporting to be the translation of a paper drawn up in Persian, and sent from Nundcomar to general Clavering before his execution. That paper was rather of an accusatory than of a defensive nature, and had been so considered by all who heard it, and the observations made upon it bore extremely hard upon general Clavering, col. Monson and himself. As he therefore solemly pledged himself to the House at the proper time, to answer and refute the stigma that was attempted to be fixed upon him by that paper, he meant to move that it be laid upon the table. This he conceived, he had a right to claim ex debito justitia, and he supposed there would be no objection to the motion, as the original paper in the possession of sir Elijah was the only one in existence. He concluded with moving, "That sir Elijah |