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REPORT, made on the 30th April 1794, from the Com.
MITTEE of the House of Commons, appointed to inspect the lords' journals, in relation to their proceeding on the trial of WARREN Hastings, Esquire, and to report what they find therein to the House (which committee were the managers appointed to make good the articles of impeachment against the said WARREN HASTINGS, Esquire); and who were afterwards instructed to report the several matters which have occurred since the commencement of the said prosecution, and which have, in their opinion, contributed to the duration thereof to the present time, with their observations thereupon.
Your committee has received two powers from the House—The first on the 5th of March 1794, to inspect the lords' journals, in relation to their proceedings on the trial of Warren Hastings, Esquire, and to report what they find therein to the House. The second is an instruction given on the 17th day of the same month of March, to this effect : That your committee do report to this House, the several matters which have occurred since the commencement of the said prosecution, and which have, in their opinion, contributed to the duration thereof to the present time, with their observations thereupon.
Your committee is sensible that the duration of the said trial, and the causes of that duration, as well as the matters which have therein occurred, do well merit the attentive consideration of this House; we have therefore endeavour ed, with all diligence, to employ the powers that have been granted, and to execute the orders that have been given to us, and to report thereon as speedily as possible, and as fully as the time would admit.
Your committee has considered, first, the mere fact, of the duration of the trial, which they find to have commenced on the 13th day of February 1788, and to have continued, by various adjournments, to the said 17th of March.—During that period the sittings of the court have occupied one hun
dred and eighteen days, or about one-third of a year. The distribution of the sitting days in each year is as follows :
Days. In the year 1788, the court sat
- 35 1789,
22 1794, to the first of March, inclusive - 3
Your committee then proceeded to consider the causes of this duration, with regard to time, as measured by the calendar, and also as measured by the number of days occupied in actual sitting. They find, on examining the duration of the trial, with reference to the number of years which it has lasted, that it has been owing to several prorogations, and to one dissolution of parliament ; to discussions which are supposed to have arisen in the House of Peers, on the legality of the continuance of impeachments from parliament to parliament; that it has been owing to the number and length of the adjournments of the court ; particularly the adjournments on account of the circuit, which adjournments were interposed in the middle of the session, and the most proper time for business ; that it has been owing to one adjournment, made in consequence of a complaint of the prisoner against one of your managers, which took up a space of ten days; that two days' adjournments were made on account of the illness of certain of the managers; and, as far as your committee can judge, two sitting days were prevented by the sudden and unexpected dereliction of the defence of the prisoner at the close of the last session, your managers not having been then ready to produce their evidence in reply, nor to make their observations on the evidence produced by the prisoner's counsel ; as they expected the whole to have been gone through before they were called on for their reply. In this session, your committee computes that the trial was delayed
about a week or ten days. The lords waited for the recovery of the Marquis Cornwallis, the prisoner wishing to avail himself of the testimony of that noble person.
With regard to the 118 days employed in actual sitting, the distribution of the business was in the manner following :- There were spent,
Days. In reading the articles of impeachment, and the de
fendant's answer, and in debate on the mode of
3 Opening speeches, and summing up by the managers •
19 Documentary and oral evidence by the managers 51 Opening speeches and summing up by the defend
ant's counsel, and defendant's addresses to the
22 Documentary and oral evidence on the part of the defendant
The other head, namely, that the trial has occupied 118 days, or nearly one-third of a year :- This your committee conceives to have arisen from the following immediate causes : first, The nature and extent of the matter to be tried : -secondly, The general nature and quality of the evidence produced; it was principally documentary evidence, contained in papers of great length, the whole of which was often required to be read, when brought to prove a single short fact; or it was oral evidence, in which must be taken into consideration the number and description of the witnesses examined and cross-examined :-thirdly, and principally, The duration of the trial is to attributed to objections taken by the prisoner's counsel to the admissibility of several documents and persons, offered as evidence on the part of the prosecution. These objections amounted to sixty-two: they gave rise to several debates, and to twelve references from the court to the judges. On the part of the managers, the number of objections was small; the debates upon them
were short : there was not
reference to the judges; and the lords did not even retire upon any of them to the chamber of parliament.
This last cause of the number of sitting days, your committee considers as far more important than all the rest. The questions upon the admissibility of evidence; the manner in which these questions were stated and were decided; the modes of proceeding ; the great uncertainty of the principle upon which evidence in that court is to be admitted or rejected : all these appear to your committee materially to affect the constitution of the House of Peers, as a court of judicature, as well as its powers, and the purposes it was intended to answer in the state. The peers have a valuable interest in the conservation of their own lawful privileges : but this interest is not confined to the lords. The Com-: mons ought to partake in the advantage of the judicial rights and privileges of that high court. Courts are made for the suitors, and not the suitors for the court. The conservation of all other parts of the law, the whole indeed of the rights and liberties of the subject, ultimately depends upon the preservation of the law of parliament in its original force and authority.
Your committee had reason to entertain apprehensions, that certain proceedings in this trial may possibly limit and weaken the means of carrying on any future impeachment of the Commons. As your committee felt these apprehensions strongly, they thought it their duty to begin with humbly submitting facts and observations, on the proceedings concerning evidence, to the consideration of this House, before they proceed to state the other matters which come within the scope of the directions which they have received.
To enable your committee the better to execute the task imposed upon them, in carrying on the impeachment of this House, and to find some principle on which they were to order and regulate their conduct therein, they found it necessary to look attentively to the jurisdiction of the court in which they were to act for this House, and into its laws and
rules of proceeding, as well as into the rights and powers of the House of Commons in their impeachments.
RELATION OF THE JUDGES, &c. TO THE COURT OF
PARLIAMENT. Upon examining into the course of proceeding in the House of Lords, and into the relation which exists between the peers on the one hand, and their attendants and assistants, -the judges of the realm, barons of the exchequer of the coif, the king's learned counsel, and the civilians masters of the chancery, on the other ; it appears to your committee, that these judges, and other persons learned in the common and civil laws, are no integrant and necessary part of that court. Their writs of summons are essentially different ; and it does not appear that they or any of them have, or of right ought to have, a deliberative voice, either actually or virtually, in the judgments given in the high court of parliament. Their attendance in that court is solely ministerial ; and their answers to questions put to them, are not to be regarded as declaratory of the law of parliament, but are merely consultory responses, in order to furnish such matter (to be submitted to the judgment of the peers) as may be useful in reasoning by analogy, so ,far as the nature of the rules, in the respective courts of the learned persons consulted, shall appear to the House to be applicable to the nature and circumstance of the case before them, and no otherwise.
JURISDICTION OF THE LORDS. Your committee finds, That in all impeachments of the Commons of Great Britain for high crimes and misdemeanours, before the peers in the high court of parliament, the peers are not triers or jurors only, but by the antient laws and constitution of this kingdom, known by constant usage, are judges both of law and fact; and we conceive that the lords are bound not to act in such a manner as to give rise to an opinion, that they have virtually submitted to a division of their legal.powers; or that, putting themselves into , the situation of mere triers or jurors, they may suffer the