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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 vali dity 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 specifick,) 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 à 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
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 mi
nutes 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 un“ doubted 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 shew 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 errour; 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 shew 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