MR. FRANCIS'S SPEECH.
[PRICE TWO SHILLINGS.]
SPEECH IN THE HOUSE OF COMMONS, ON TUESDAY the 7th of MARCH, 1786. BY PHILIP FRANCIS, ESQ.
LONDON: PRINTED FOR J. DEBRETT, OPPOSITE BURLINGTON-HOUSE, PICCADILLY. MDCCLXXXVI.
HOUSE OF COMMONS,
Tuesday, March
7
th,
1786.
Mr. FRANCIS.
Mr. SPEAKER,
I RISE to move for leave to bring in a Bill to explain and amend an Act passed in the Year 1784, for the better regulation of the East-India Company's Affairs. I am deeply sensible, Sir, of the difficulty of the task I have undertaken. To move for the essential alteration of an Act of the Legislature, against the sense of a Majority of this House, and to encounter the abilities, which were employed in framing it, and which are likely to be exerted in defending it, is not an attempt, to
me
at least, of inconsiderable magnitude. I can very truly assure you, Sir, that if I were not thoroughly convinced that what I propose to do is necessary to be done; if I did not think myself bound by a special duty to make the attempt, and if I were not conscious that my motives for making it were honest and upright, I should neither have the confidence to undertake such a labour, nor a degree of resolution sufficient to go through with it. The considerations, which have called me to this duty, will, I trust, support me in performing it. When I say that I have the sense of a Majority of the House to encounter, I mean to pay the greatest tribute to their honour and to their justice; since I presume and expect that they will nevertheless hear me with indulgence, that they will listen to arguments opposed to their present impressions, and be led perhaps by the reflections, which such arguments may suggest, to condemn and undo an Act of their own.
There is one preliminary word, including a solicitation, which I shall offer to the House, and particularly to the Right Honourable Gentleman
Mr. Pitt.
, who brought in the Bill. It is, that they would separate and distinguish the substance of what I have to submit to their consideration from
my
manner of delivering it.—That the honourable Gentleman himself, if, thro' the disorder and embarrassment with which I may speak, he can discover and collect the force and meaning of what I would express, and if that meaning should appear to him to deserve consideration, he will, in the first place, allow it due weight in his own mind; and then, if he should think fit to answer me, that he will give my arguments the advantage of his own expression, and encounter them in the armour with which he himself shall have invested them.—However he may disregard personal invectives or personal attacks, he ought not to under-value any efforts, that are seriously employed in the discharge of a public duty.—It is the condition, perhaps the burthen of his station, to listen to all men with patience and attention, and to collect information wherever it can be found. Between the Honourable Gentleman and me there is no competition; and if there were, it ought not to be decided by inequality of arms. In desiring the honourable Gentleman's assistance against himself, I certainly invite him to a conduct, that will do him honour. There is but one thing more honourable to the human character; and that, I am not without hopes, may be the result of this day's debate. If fortunately, from the reflections, which I mean to submit to the House, the honourable Gentleman's own measure should stand condemned or considerably impeached, in his own mind, I persuade myself that he will frankly acknowledge his conviction, and act upon it.
Before I enter upon the essential part of my task, there is an explanation to be stated to the House, external to the merits of the motion which I mean to make, yet materially connected with it. This explanation regards the time and circumstances, in which I act. It is matter of public notoriety, though not regularly before the House, that the India Bill was received in India a year ago with great discontent, and that petitions against it were preparing to be sent over to be laid before Parliament. On one side then I may be suspected of a base intention to avail myself of the present temper of the discontented parties, for some mischievous purpose; and, on the other, I may be charged with acting precipitately, and unfairly to the Petitioners themselves, in not waiting for their petition. To the first imputation I say, that my opposition to almost every part of the Bill, but particularly to the Inquisition and Judicature, was known and declared from the moment when it was introduced, and that I have invariably held the same language, and expressed the same sentiments concerning it. My objections to the measure were no way connected with my opinion of the reception it might meet with in India. Some Gentlemen, who ought to have been better informed, than it appears they were, took upon them to assure the House, that they had no doubt of its being perfectly well received there; they assured us it would be received with open arms. I will not deny that, on my own principles, perhaps I might have been strictly bound to have moved for an alteration of this law in the course of last session. But I had reasons for not doing so, which I hope will be thought valid. The attention of the House was wholly engaged in the commercial arrangement with Ireland. The most exceptionable parts of the India Bill were not to begin to operate till a year or two afterwards; but principally, I wished to give time for the sense of the House to cool upon its own Act, and for the general judgment of the nation to be collected on the merits of the measure.—With respect to any impression, which the Bill may have made in India, or any measures taken there to obtain a repeal of it, I beg it may understood that the business I am engaged in, and the part I take in it, stands wholly independant and unconnected with any thing said or done in India; that if the law, instead of being received as it has been, had been accepted by the parties immediately concerned in it, as a benefit, I should not indeed have been so forward and officious, as to wish to protect
them
against an inquisition and a trial, which they were willing to submit to; or to restore them to rights, which they were willing to relinquish; nevertheless I should have taken the same course I now take. I should equally have moved for an alteration of this law, that a precedent might not be established, either with or without their consent, dangerous to the constitution of this island, and to the rights and security of the community at large.
To the second objection I answer, that although I act independently of the Petitioners, I am as much in earnest, as they can be, to promote the object of their petition. What I am going to do cannot injure, and may assist them. In the matter, I take for granted we are agreed. In the manner, I feel myself bound by considerations of duty here, which they are not equally concerned in. Next to the object itself, it is my wish, and shall be my endeavour to accomplish it in a way most honorable to Parliament, and most consistent with its dignity; I mean by an appeal to the justice of Parliament, and to nothing but its justice. The object of the Petitioners may be obtained, and the dignity of Parliament may be preserved together. For this latter purpose it is material, nay it is essential, that Parliament, in the revision of its own Act, should proceed on its own motion without the influence of any external impulse whatsoever. On this subject I need not enlarge. The reflections, that belong to it, are obvious.
There is one plea however, which I must beg leave to enter in this place against all insinuations that have been or may be hazarded, against my integrity in the part I take in these transactions; namely, that nothing said or done now in England, concerning this law, can affect the minds or influence the conduct of our fellow-subjects in India. The law made its impression a twelvemonth ago. Whatever the consequences of that impression may be, they do not depend on any thing which can be stated now, or foretold concerning them, and which cannot reach India till many months hence. It is a common artifice for the real author of a misfortune to endeavour to shift the responsibility of his own measures from himself to the persons, by whom those very measures were most strenuously resisted. By this sort of stratagem, the foresight of an evil is converted into the cause of it, and the prophet is made answerable for the mischief he foretold. Former predictions on the present subject have already been fulfilled by events, which are themselves prophetic.
Having thus far cleared the ground and opened the way to my object, the first thing I shall attempt, shall be to submit to the House a short distinct view of the law as it stands, comprehending the fundamental governing principles, that constitute its essence, and the prominent features that form, if I may use such an expression, the countenance, the
vultus,
or general volition of the law. An explanation of this kind is the more necessary, because I know in some instances, and have reason to suspect it may be true in many, that this law has not been attentively read nor hitherto very carefully considered; and I confess that I am not sorry to think so. If I thought the reverse were true, my hopes of success to night would be considerably abated. As it is, I derive some encouragement from your neglect. Besides this, Sir, by beginning with a view of the principles, a minute examination into the detail of the Bill will, in a great degree, become unnecessary to my purpose. If these leading principles are such as the House, on a fair review of them, shall think it right to adhere to and confirm, it would answer no purpose of mine to shew that there were mistakes or inconsistencies in the detail.—Defects of that kind belong to all human institutions, and are easily corrected. On the other hand, if the principles of the law should on a fair review of them be reprobated by the House, as false, absurd and unconstitutional, the great and essential part of my task is accomplished. I shall have struck a decisive blow at the root of the tree. The body of it must fall and bring the branches to the ground.
This law, Sir, obviously divides itself into three great departments, and is therefore to be considered generally under three points of view: First, The arrangement made for the distribution and establishment of power at home: Secondly, The arrangement made for the government of the Company's affairs abroad: and finally, The institution of a special inquisition and of a new Judicature in England, for the discovery and trial of offences committed in India.—The first, I affirm, stands in direct contradiction to every rational principle of good government; the second, stands in the same contradictition, not only to principles but to experience; and the third introduces a capital and dangerous innovation into the criminal jurisprudence of this country, for no purpose of justice whatsoever, that might not have been equally, if not better, obtained by the Judicatures that exist already. I state my propositions in terms of great reserve and moderation compared with my opinion, and hope that I shall be able to prove much more than I affirm.
In the first place, Sir, I state it as a matter of fact that, with respect to the governing power of the India Company in England, the constant and notorious complaint was, that the power of the Court of Directors was defective and insufficient to inforce obedience among their Servants abroad, or to punish their disobedience.—To remove this cause of complaint and to supply this defect, recourse has been had at various times to the authority of the Legislature; and the professed object of every Bill, that has been offered to Parliament, for the better regulation of the Company's Affairs, has been to strengthen the executive power of the Company:—That is, of the Court of Directors, either by giving them additional powers, or by removing the impediments thrown in their way by the interposition of the Court of Proprietors, who did, in reality, divest the Directors of all their power. Now, Sir, I admit that the general object of creating a power at home, sufficient to inforce and secure obedience abroad, was proper, wise, and necessary. Let us see what course the present law has taken to arrive at this just and necessary object.—It leaves the ostensible power of the Company with the Court of Directors. By
them
all orders and instructions for the governments in India are to be prepared, and by
them
they are to be signed; by
them
also all appointments to the service are apparently to be made:—Thus far the fact, or the appearance of the fact, is consistent with the principle.—I cannot admit a supposition that the Legislature entertained the least distrust of the integrity, or even of the wisdom of the Court of Directors. I cannot suppose it possible that the Legislature, professing to interpose its power for the improvement of institutions, or the correction of abuses, should have continued the most delicate of all trusts, and the most important of all powers, namely, that of the Executive Government, in the very hand, that was believed to have betrayed or abused it; or in any hand whatever that was deemed to be unequal to the performance of the duty.—The law declares its confidence in the Directors, since it continues, professedly at least, to vest in the direction an equal power to that they had before. The law clearly supposes them to have hitherto made a proper use of such power as far as they were able to exert it, and therefore professes to confirm and enlarge it. But the moment you turn over the leaf, you will find that all these ideas, and provisions are reversed:—That the law assumes a new principle utterly incompatible with that, on which any new power could properly be given to the Directors, or any of their former power could properly be left in their hands.—It abandons all idea of strength and vigour in the executive power. Instead of uniting that power in some one board, which could alone make it efficient, the law divides it between two boards, whose operations, from the particular nature of that division, cannot act vigorously, even when they act together; and, when they counteract each other, must not only be feeble but ridiculous.—Power, in whatever manner it may be divided between different political persons, is generally impaired by a division; but the special division of it made by this Bill is more extraordinary than even the idea of dividing it at all. It places all the nominal power of the Company in one set of men, and all the real power in another. The power, that appears to command, is itself commanded, and obedience is expected to the authority of men, whom the law itself declares to have no authority at all. If the Company's servants were disobedient in former times, when they knew that the orders they received were really the act of the persons who signed them, what are we to expect at present, when they know, because the law itself tells them so, that the Directors are nothing but formal instruments in the hands of another board, and that they are obliged to put their signatures, not only to letters and instructions which they have not drawn up, but to letters and instructions drawn up in notorious contradiction to their declared sentiments? A more effectual contrivance to excite and irritate a spirit of disobedience, could hardly have been thought of. What language will the servants hold now to their employers, but this in effect.—
"We were ready to have obeyed you, but we know that the orders we have received are not yours. We know that they are directly opposite to your sentiments."
A more plausible pretence for disobedience, cannot easily be imagined. Sir, I am not reasoning upon imaginary cases. The law has established two jurisdictions over the same object. We know that they have already clashed in one very important instance, and I have reason to believe that they continue to do so in many others. The very moment the Directors began to act, the Board of Controul began to counteract; and the Directors in the end were forced to sign orders, against which they had previously protested.
The bad consequences of such a system are obvious in theory, and visible in fact. What good effects it has produced, and how it can possibly produce any, must be explained by those who approve of it.—The burthen of that explanation makes no part of my undertaking. They, who are of opinion that a double Government, in which every apparent act of power of one hand is the real act of power of the other; in which the power that controuls is itself controuled; in which the power that commands is itself commanded; in which the power, that acts, is known to act against its own sentiments; that such a Government can be wise in theory, or efficient in practice, will support the present law as it stands, for I have stated nothing, which the law itself does not most explicitly enact. They, on the contrary, who may think that a single ostensible Government is better than a double one; That it provides better for the uses of power, and better fixes and secures a determinate responsibility to answer for the abuse of it, will join with me in affirming, that the executive power of the Company ought to be vested in one Board, or in one set of men; and whether they prefer a Court of Directors, or any other form of Government, they must equally concur in my conclusion, that this part of the present law defeats its purpose, if that purpose was to create a government, vigorous on one side and responsible on the other; and that, as long as the present law is in force, the Company's affairs are under a government, directly the reverse of what all governments ought to be, and the particular situation of their affairs most urgently demands.
I have stated that the defect, or grievance at home, was want of power over the service abroad. If that proposition be true, it includes the supposition that the servants abroad abused the power, with which they were intrusted, and were disobedient and refractory to that, which the law had placed over them.—There would have been no occasion to increase, or strengthen the power at home, if it had not met with a resistance, which it could not overcome. But I need not have recourse to any implication, however clear, and obvious.—Every Bill, that has been brought into Parliament on this subject, takes the affirmative for granted, considers disobedience as a fact as well as a crime, and denounces various penalties against it.—The present law declares, that the wilful disobeying, or the wilfully omitting to execute, the orders of the Directors, shall be deemed, or be taken as a misdemeanor at law, and punishable as such.—Now, Sir, I would ask the Right Honourable Gentleman, if such disobedience has existed, who are the persons most likely to have been guilty of it? in what persons was such disobedience most important in the instance, and most dangerous in the example? Undoubtedly he will answer me, the Persons in the highest trust and authority in India; they alone could disobey, they alone could execute and inforce the orders of the Directors; they alone are answerable, not only for their own offences, but for every offence, which they promoted by their participation, which they permitted by their negligence, or encouraged by their example. The conclusion from this reasoning unavoidably fixes the charge of disobedience upon the highest power, and the charge of breach of duty upon the highest trust established in India. It necessarily fixes both upon the Governor General and Council of Bengal.—No man, who knows any thing of India, will affirm that, if that Council had been determined to do their duty themselves, they could not have compelled all the subordinate ranks of the service to follow their example. Sir, this very law fixes its eye upon the Governor-General and Council, and does, in effect, charge upon them, or the majority of them, all the capital offences, which it reprobates and prohibits.—What is the power in India that can
pursue schemes of conquest and extension of dominion,
but the Governor General and Council of Bengal? What power can
declare war, or commence hostilities, or enter into any treaty for making war,
but the Governor General and Council? The subordinate Presidencies could have adopted no hostile measure of any kind, which the superior Council might not have instantly countermanded, if it was proposed; and arrested, if it was begun.—There was no possibility that Madras or Bombay could carry on war, without the concurrence and assistance of Bengal. Besides that they have no resources of their own, any member of each of these Presidencies might have been removed by the Governor General and Council, if he attempted it. In all the late wars therefore the Governor General and Council must be considered as principals; but it is well known that, in all those questions, the Council was not unanimous.—The measures, which this Act so expressly condemns, were the Acts of a majority. But even that majority was fictitious, since it consisted of the Governor General, and one member of the Council against the remaining two. In truth, the Governor General's casting voice decided every thing; for although the Council ought to have been composed of five persons, the unfortunate death of General Clavering, threw the whole power of government into the hands of two persons, of whom one by an unreserved concurrence of opinion united his vote and authority in that of the other. Such was the gradual devolution of power in Bengal, until it ended in a point, until it vested in the Governor General alone, until it centered in effect in the person of Mr. Hastings. His colleague is to answer for the surrender of the power; but Mr. Hastings is especially answerable for the use that has been made of it. The fact is, that, under the government of a single person, armed with a really undivided power, which the constitution of the Council never meant to give him, all those principles, which the present law condemns and prohibits, were brought into action, and produced all those effects, which the present law professes to look back to with indignation, which it threatens hereafter to punish, or promises immediately to correct. From these premises it might naturally be expected, that the law, when it condemned certain acts, and reprobated certain principles, would have limited and restrained the power of those persons, who had done such acts, and avowed such principles. For what reason the law should act on a conclusion opposite to its own premises, as in fact it has done, has never been accounted for.—From the acknowledged abuse of power, the inference of this law is, that such power ought to be strengthened and encreased. It states the experience of former abuses, and refuses to be guided by it.—In the first place it reduces the Council from five persons to four; that is, it professes to strengthen by contracting it into fewer hands; and then, in order to unite the power of the whole Council in the hand of one person, it intrusts the Governor General with the perpetual exercise of a casting voice as long as the Council consists of an even number, and is equally divided; that is, it unites the power and divides the responsibility. One would think that they, who had seen to what purposes the power of the casting voice had been applied, when it accidentally fell into the hands of a Governor General, would never have proposed to annex it in perpetuity to that office. But, taking the Bill on it's own principles, and admitting that it might be right to give a constant predominant power to the Governor General, I affirm that this is the very worst way of giving it.—That it does not give it with certainty, and that the framers of the law were afraid or ashamed to look their own principle in the face.—If a Governor General ought to have such power, it ought to have been avowedly stated, and directly given.—Otherwise it may happen, that the power, which you say is necessary, may, in fact, never vest in the Governor General. At all events his tenure of it is precarious. Of course the measures of the government must fluctuate with every accident, that gives or takes away the operation of the casting voice.—By these observations, I am far from meaning to admit, that the object is in any degree wiser than the mode. In my mind, the means are absurd, and the end is dangerous. I speak from long observation and experience, and with all the deliberation and conviction of which my understanding is capable, when I affirm, that to unite all the powers of government in India in one person, would be a dangerous measure in one view of it, and a useless measure in every other.—That it may be the cause of irretrievable mischief, and can answer no good purpose, which may not be more effectually accomplished by another course. I well know, Sir, that, at sight of any great distress, or mismanagement, or abuse in public affairs, the first idea, that is apt to present itself to the mind, is that of creating a dictator. When I say that this is the
first
idea that presents itself, I mean that it is not the result of experience and reflection. I will not argue upon the wisdom of such an institution in a political system very different from ours.—An arbitrary monarch, or a republic may perhaps delegate all their power for a limited time to one person, with safety and effect. The dictator had power of life and death; and I will not undertake to deny, though I am far from meaning to admit, that a remedy of such violence, if it did not kill, might possibly cure. But remedies of this dangerous vigour are incompatible with our constitution.—You cannot give the power; and, if you could, it would answer no good purpose—My proposition is, that, for every good purpose, attainable under our constitution, a Governor and Council is a much stronger power than any that can be exercised by a single person.
As to any man, who may have demanded such power for personal purposes of his own, I treat him, as I suppose this House would instantly do—I lay him intirely out of the question. But let me suppose the case of a man of unquestionable honor and integrity, who should insist on being vested with exclusive powers, with an undoubted intention of making the best use of them. To him I would say,
"Sir, the confidence, which you seem to repose in your own judgment, does not intitle you to mine.—I know from experience, that cases occur in the government of India, in which the advice and controul of a Council, are not only useful but necessary, and in which the most prudent Governor will be the readiest to take advice. A wise Governor will not only take advice, but he will be glad to have the constant check and inspection of a Council over his actions. No man, whose intentions are upright, will feel himself fettered, or distressed by such advice and inspection."
But, it will be said, that the plans and views of a Governor General, however proper and judicious, may be thwarted and defeated by factious opposition, and by divisions in the Council.—To this I say, that,
primâ facie,
a Governor is just as likely to be a factious man and to have bad intentions, as any given member of the Council. Nay, the presumption is against him in proportion to the superiority of his rank and influence. The elevation of power is apt to make men giddy; and the exercise of it, I fear, has no direct tendency to improve their morality. In all the divisions under Mr. Hastings's government, the Court of Directors fixed the blame upon
him.
The two Committees of the House of Commons, who have inquired into our conduct, have done the same.—Let it be admitted, nevertheless, that a majority of the Council is most likely to be in fault, and that they thwart the Governor General on factious principles, and for interested purposes of their own.—If that should really happen, take care that you fix the blame, where you ought to fix it. If you do not, you are unjust in the first instance, and that injustice will mislead you in the subsequent choice of your measures. Before you apply a remedy against faction, take care that you distinguish between the merit of the institution itself, and that of the persons who are appointed to fill it up. The wisest institution, that human wisdom has been able to contrive, may be defeated by an improper choice of persons.—On the contrary, a poor and feeble system, honestly, wisely, and vigorously executed, may be attended with all the effects of a virtuous government, and many of the advantages of a strong one.—If, when you have instituted a Council on the wisest principles, you fill it up with men of no ability, or experience; with men of a questionable character; with men, whose general principles are not previously known to one another; or, in short, with men, whose rank and reputation in life give you no pledge or security for their good behaviour; and if then you find your Council distracted by factions; if then you find the wise measures of your Governor General resisted and defeated, do not condemn the institution, but blame yourself for the weak or shameful choice you have made of the persons, to whose hands you have committed the execution. On this point I desire to be understood to speak generally, and not to allude to any fact or individual whatever. Now, Sir, let me suppose, that, under the same institution, the choice of persons were to be directly the reverse of that which I have described:—That none but men of proper rank, acknowledged ability and unquestionable integrity; and whose general principles were known to, and approved of by each other, were appointed to this Council.—Will any man say that a Council, so composed, is likely to thwart and embarrass a good Governor by a factious opposition to his measures? No, Sir, they will not weaken his authority by opposition, but they will make him powerful indeed by their support. A Governor General understands nothing of his situation, if he thinks that any power, directly vested in his hands, will carry half the sway with it, that will always accompany the united Acts of a Governor and Council.—If he trusts to his own exclusive judgement, I tell him, he will find himself surrounded by some of the most artful men that exist; on one side, by natives, who, without our general knowledge, are infinitely sagacious, who observe us attentively, and understand us perfectly; and on the other, by some Europeans, who, in every thing but their habit and complexion, are perfect Asiatics. No single unassisted English judgement is a match for such men, and for such peculiar faculties, as will collect about him from the moment of his arrival.—If again he relies on his exclusive power, I tell him that, for want of clear and accurate knowledge, he will rarely venture to exert it. Every man, who approaches him, will tell him a different story, or give him a different opinion. He will often doubt, and when he doubts, he will not act at all. No vigorous determination can exist in a good mind, that is not produced by knowledge or conviction. But even his power, when he exerts it, will be feeble and ineffectual against the universal combination and clamour of all ranks and of all interests, which will be formed to counteract him in every measure, that tends to reduce exorbitant emoluments, or to correct any abuse, from which individuals derive an advantage. In this respect however, our fellow subjects in Bengal have full as much morality as we have. In parallel circumstances, the same thing would happen in England. But, in a great community, the reformer has the voice and approbation of a majority to encourage him. In a very narrow circle he will have no part of the society, in which he lives, to support him against the rest. They will all make common cause against him, and sooner or later overcome his resolution, or break his heart. Upon the whole, I am of opinion, that in a plan of general reform, a united Governor and Council may do much;—a single person can do nothing. For the truth of this proposition, I would readily appeal to Mr. Hastings himself; and I would state the argument to him with an admission of all the personal preferences and objections, which that gentleman could wish to establish. Let it be imagined then, that the legislature, instead of forcing him to act with men of unequal rank in life, of opposite views, of a suspected or doubtful character, and of an impracticable temper, such as General Clavering, Colonel Monson, and myself, had united him with men of his own cast and disposition, with men whose general views and principles determined them to give him the same cordial and vigorous support, which he constantly and uniformly received from Mr. Barwell;—then would he say, that a Council, so constituted, and so acting firmly together, would not have possessed in itself, and given the governor a stronger power, than any that could have been vested singly in his person, or any that he alone could have ventured to exert. I am much mistaken indeed, if, on a case so stated, Mr. Hastings's opinion would differ from mine.—This at least I may affirm with certainty, for my late honourable colleagues as well as for myself; that if the personal character, political views, and public principles of Mr. Hastings and Mr. Barwell, had been such as, concurring with our own, had engaged us to unite cordially with Mr. Hastings, and to give him a steady and vigorous support, we should have thought his government not only more wisely calculated for all the purposes of Council and Deliberation, but even stronger in the execution, than any power that could have been vested in him alone; and that it would have carried an opinion, a dignity, an authority, and a sway along with it, which no faction could have resisted, no combination could have withstood.
From all these premises, I come to my conclusion on the second general division of the Bill, that the reduction of the Council from five to four was an unwise measure: That every idea of vesting great exclusive power in any single person is at once useless and dangerous: That, for all good purposes, a united Council is infinitely more powerful than a single person can be; and that even if the principle, on which the present law proceeds, were ever so just and necessary, I mean that of giving special powers to a Governor General, this law does not act up to its own principle, or provide for its own object. The power it gives is meanly and indirectly given, and it provides no security for its continuance, for a single day, in the Governor General's hands. On the whole therefore, if you disapprove of the principle of giving exclusive power to a single person, you must condemn this law for having given too much; but, if you approve of the principle, you must then condemn the law still more strongly for having given too little.
We are now to consider the third great division of the Bill; and on this subject, I confess I expect not only a general attention, but a general concurrence and support. However indifferent and uninteresting the good or bad government of the East-India Company's affairs, or the welfare of the people subject to their power in India, may have been to the nation at large, or to a majority of this House, or to any individual member of it, there is not a man in the kingdom, to whom the subject, that now calls upon you for your attention, ought to be indifferent. At first sight, it may perhaps appear to affect only a part of our fellow-subjects, who are at a distance from us. If that were true, I still should think it my duty to appeal to you in their behalf. This law declares that they are not so distant, as to be out of the reach of its power. To whatever extent we carry that power, let us take care to shew, that our justice goes along with it. Let no man in India have reason to say, that he is included in the power, and excluded from the justice of the legislature. But, Sir, it is not for
them
alone, that I have undertaken this heavy task. The instant suffering is theirs. The consequence and the danger is yours.
Res agitur vestra.
A capital innovation is made in the criminal jurisprudence of England. New principles are introduced, not only into the system of our laws, but into the manners of the people. A new tribunal is erected for the trial of misdemeanors committed in India, and armed or accompanied with powers unheard of in this country. The ancient established mode of trial by a jury, and by the country, is renounced as imperfect and inadequate; a new and arbitrary system of enquiry and trial is established in the room of it; and all this is done for reasons and pretences equally applicable to any other sort of crime, and any other species of offender. This system, considered as a fact, I deem to be unjust and arbitrary.—Considering it as a precedent, it holds out a general menace to the whole kingdom; it acts directly upon a few, but it threatens us all.—If by the immediate acquiescence of the parties, if by their voluntary surrender of their rights, the instant injustice of the fact could be palliated or removed, the danger of the precedent would be increased; for who would regard a distant menace, if he, who was actually wounded, were to suppress his resentment, or to admit by his silence, that he had no reason to complain.
In agitating this part of my subject, the principle I set out with, and the main ground I take, is not only supported by the obvious dictates of policy and reason, but by the highest authority, by which Parliament can be instructed. The authority I speak of is at all times intitled to submission and respect; but, to the respect and submission of this House of Commons in particular, and of the present administration, its claim is special, and not to be resisted. At the first meeting of the present Parliament, we received an admonition from the Throne, which I am sorry to say was very little regarded in our subsequent proceedings. The words his Majesty made use of ought for ever to be remembered.
"The affairs of the East-India Company form an object of deliberation deeply connected with the general interests of the country. While you feel a just anxiety to provide for the good government of our possessions in that part of the world, you will, I trust, never lose sight of the effect which any measure, to be adopted for that purpose, may have on our own constitution, and our dearest interests at home."
To insure the success of the present motion, I desire no better pledge or security, than that the House should keep this wise admonition in their view, and be governed by it. The principle contained in it has already been successfully exerted, though in my judgment very erroneously directed, against a law proposed by a right honourable Gentleman
Mr. Fox.
near me; against a law, which in no shape invaded the constitution, or affected any domestic interest that ought to be dear to us.—The part which the nation, in general, took in that transaction, has only proved the facility, in some cases, of substituting words for meaning, and of totally overturning the sense by the sound.—The charter of a monopoly was confounded, with the great charter of our freedom, and that single word
Charter
decided the question. When the principle I have alluded to had done all the duty demanded from it, it was still indeed adhered to in terms, and delivered with great and awful solemnity, as an instruction to this House; but it was at that very moment completely abandoned in fact, and another directly opposite to it assumed, and acted upon. In little more than a month after the King had cautioned us from the throne,
never to lose sight of the effect which any measure, to be adopted for the good government of India, might have on our own constitution, and our dearest interests at home,
a Bill was brought into Parliament, which, I affirm, and I have no doubt of being able to prove, attacks the constitution of England in its foundation, and not only threatens but invades the security of every interest, that ought to be dearest to us at home; which not only shakes the defences of our domestic establishment, but acts upon principles, which ought not to be admitted under any government or constitution, or in any human society whatever. I desire it to be understood, Sir, that in every thing I am going to say, I keep the King's Speech in view as a beacon, or landmark, by which my course shall be directed. In the first place, allow me to state, in a short general view, what it is that this part of the law enacts. It begins with compelling a set of men, whom the law itself in some sort prejudges to be criminal, whom it strongly suspects at least if it does not accuse, of having acquired fortune by corrupt practices if not by violence and extortion, to deliver an exact inventory of their property on oath, as soon as they arrive in England. Now, Sir, with respect to men perfectly innocent and unsuspected, the best that can be said of the law is, that it is harmless. If that were all, it would then be equally useless. From those, who are innocent, you can extort no confession. But I deny that it is in no case a hardship and injustice to an honest man, to oblige him to declare publicly the exact amount of his fortune. Numberless cases might be stated, in which it might be, to a very honest man, a very arbitrary act of oppression. It might even happen, that the act might be oppressive in proportion to the innocence of the party; for, though his poverty might prove his innocence, it may easily happen that many a man would wish to have his innocence proved by any other kind of evidence.—We do not live in times, in which poverty is respectable. I fear the contrary is true, and that the law, which compels an honest man to discover the narrowness of his circumstances, whatever it may intend, will in effect only serve or assist to fling disgrace upon ill fortune, and to make the most honourable poverty ridiculous. Men of this description ought certainly to be spared.
Now, Sir, admitting it to be an equitable supposition, that guilt and fortune go together; admitting it to be a sound principle of justice, that men should be tried rather by their wealth than by their actions, let us see how the law operates on those, whom it may have reason to suspect; on men, who may really have acquired an immoderate fortune by very unwarrantable, perhaps very criminal means. See whether the option, which the law holds out out to such persons, be likely to produce any good effect whatever. It obliges the parties to choose between a condemnation of themselves by a discovery of their guilt, and a concealment of their guilt by perjury. If this be the option, what is like to be the choice?—That a man, accustomed to criminal practices of one kind, will be extremely scrupulous about committing another crime to protect the first; or that, being already guilty, he will make himself still more guilty in order to escape punishment. In my mind, Sir, all the effect of the law will be, to invite him to add one crime to another; and, if he be already guilty of extortion, of oppression, or cruelty, to endeavour to cover it by perjury. In general, it is neither prudent nor equitable to place any man between a great danger, or a great temptation on one side, and a moral or religious obligation on the other. The law should be tender of creating such dilemmas. To impose such a test on men, whose integrity you already suspect, is worse than imprudent. It is an invitation to falsehood; because it annexes the expectation of impunity for one offence to the commission of another.
The law then, Sir, in the case of any complaint made to the Court of Exchequer, of wilful concealment of property, or defect, or evasion in the discovery, proceeds to subject the party to answer interrogatories on oath, at the discretion of the court. In both instances, it revives a mode of inquisition and conviction, which the constitution of this country holds in abhorrence, and which our ancestors vainly imagined they had extirpated for ever, when they abolished the Star-chamber. With respect to the interrogatories, it might be sufficient to say, that they are liable to the same fundamental objection, with the method proposed for extorting a discovery in the first instance; namely, that they place a person, who by the supposition is criminal, between the necessity of condemning himself by his veracity, or acquitting himself by his falsehood. But these interrogatories carry the same absurd and wicked principle a great deal farther. They suppose the party to have been guilty of perjury in the first instance, and they call upon him either to convict himself of that crime, or to cover it by a series of new perjuries in his answers to the interrogatories. I have stated the principles of the new inquisition, as I find them avowed and established, and shall leave them without argument to the sensations and to the judgment of the House. To make it felt that they are arbitrary and absurd requires no argument. The moment they are stated, they are condemned.
The law, having now exerted the utmost of its power to extort a discovery of guilt, by the confession of the guilty, proceeds to supply the defects of that mode by another course, which indeed seems to promise a greater probability of success, but in my judgment is still more detestable than the other, because it holds out rewards to treachery and to baseness, and tends to corrupt and destroy all the little morality we have left in private life. This law formally introduces into the inmost recesses of personal confidence and friendship, the worst of all the instruments that ever have been employed by power without right. It acknowledges the office of spy and informer to be useful in the general intercourse of society, and rewards him with a share in the success of his information. Sir, the man, who discovers a crime and brings a criminal to punishment, performs an honourable duty to the public; but he, who searches into the circumstances of another, who inquires in order to accuse, and who accuses in order to profit by the amount of his discovery, can be nothing but a traitor in private life; he never can be a useful servant to the public. But the temptation held out by this law is not confined to common spies and informers. It goes to persons much better able to discover the amount of a concealed fortune, to persons whom you have particularly trusted; your agent, your secretary, your banker, or your friend. Who knows but that the invitation of the law may seduce a son to betray his father, a a brother to betray his brother; and, what is worst of all, perhaps some person, whom you have essentially served, to betray his benefactor. The very money you have lent him, if, whether wilfully or not, you should have omitted it in your account, will enable him to accuse you of concealment, and intitle him to share in the forfeiture that follows. I appeal to every thing that is honourable and virtuous in this House.—Is there an object of penal justice, against any particular set of men, adequate to the price you must pay for it, if you suffer principles such as these to be introduced not only into the laws of the kingdom, but into the manners of the people?
This appeal to the general sense and judgment of the House, I trust, will not be ineffectual. But the justice of my cause intitles me to look every where for assistance. There is a particular body of men, powerful in this House, and in this kingdom, who, I think, are bound by many special considerations to take part with me in the present question. I mean the gentlemen, who have unaccountably been misled to give their consent to a law, which bears hard upon their former companions, and upon all the connections they have left in India. I appeal to them as to men of honour, and put the question strongly upon their character, whether they will deliberately inflict upon others such restraints and penalties, as I imagine they would have thought unjust against themselves? Whether they will look back with sympathy and concern to the situations, in which they were lately placed; or whether, having quitted those situations, they will content themselves with holding to all their deserted friends and companions the base exclusive language of personal escape and security—
Occupet extremum scabies.
—Sir, I am aware of the turn that may be given to an argument of this nature. It is directed
ad homines,
and with
them
it ought to have weight. But, in order to give point and direction to this appeal, and to make it intelligible by application, I desire leave to suppose that all the gentlemen alluded to were for a moment represented by one person, and that that person were my honourable colleague in the government of Bengal, now a Member of this House
Richard Barwell, Esq.
. To him at least I have some right to address myself. I would request him to consider whether if, before he left India, before he had remitted home and invested in England the honourable reward of his labours, (and certainly the labours were considerable, if we are to measure them by the amount of the reward,) it had been proposed to him to give or refuse his concurrence to a law, which should oblige him, the moment he arrived in England, to make a public declaration on oath of the amount and particulars of his fortune; which should compel him to submit to interrogatories on oath concerning the truth of every particular of that declaration, and which should hold out temptation and seduction to his agents, to his friends, and to every man in his confidence, (by the promise of sharing in his fortune,) to find out some error in his account,—whether, if such a proportion had been made to him, he would have hought it a just and reasonable law against himself;—whether he would have assented to it with chearfulness, or rejected it with indignation. I certainly meant to call upon him, if he had been present, to answer explicitly for himself. Yet, I think I know my honourable colleague's ideas and principles on this subject, sufficiently to venture to answer for him. I will venture to affirm for him, that he would not have intirely approved of these inquiries into the state of his fortune, much less of the encouragement held out to his particular friends to accuse him. If I form a just judgment of my honourable colleague's principles, he will assist me in protecting others from an inquisition, which he would have thought oppressive to himself. I cannot believe that he would apply any other measure to the actions of others, but that which he would willingly abide by for his own.
I come now, Sir, to the consideration of the tribunal and mode of trial, which this Bill creates and substitutes in the place of the antient trial, which every man in this land is intitled to, even the felon, the murderer and the parricide, when he throws himself upon his country: that is, to be tried by twelve indifferent persons, as nearly as possible of his own level, and by the law of the land.—Let us see what this tribunal is, how it is constituted, and how it is to act. In the first place, Sir, it professes to consist of thirteen persons, whom I will suppose for a moment to be chosen with all the indifference, which the law affects.—If they be really so chosen, it will not follow that, with respect to ten of them, namely the four Lords and six Commoners, any advantage is gained over a jury in point of knowledge, or any other judicial qualification; for I believe it will not be denied, that a special jury of English Gentlemen, is just as likely to be qualified for this or any other judicial office, as any ten members of the Lords and Commons taken at a venture.—But the positive disadvantages of the new tribunal are many and obvious.—The Lords and the Judges are not Peers of the criminal. An institution, that calls on such persons for a verdict, renounces every use and advantage, which the laws of this country annex to the trial of facts by our Peers.—In favour of what? in favour of a tribunal, in which every one of the component parts is placed in a situation in which they were never placed before. This tribunal abandons the wise and antient separation of the verdict from the judgment, and unites in the same persons the verdict, the explanation of the law, and the sentence.—Lords and Judges are called upon to find the facts, and the Commoners if they will, may determine the law, and pronounce the judgment. The vote of the Commoners on a point of law is just as valid as that of the Judge.
With respect to the method of chusing the pannel, I shall avoid saying any thing that may appear invidious, or personal.—My cause is too powerful to want the assistance of personal reflections. I stand on public ground, and shall take no other. I state it therefore only as a matter of fact, not only not denied but defended, that in the very first instance of chusing the pannel, out of which the new tribunal is to be finally selected, the choice was made by treasury lists distributed among the members of this House, and that the persons named in those lists have been appointed. I state the fact without observation, and shall leave it so to the reflections of the House.
The law proceeds to prescribe a course, by which the whole pannel of three Judges, twenty-six Lords, and forty Commoners, shall be finally reduced to thirteen persons, whose names are to be inserted in a special commission, in order to form the new tribunal. On this part of the proceeding I observe, that, admitting the necessity of changing the form of administring criminal justice, it does not follow that there is any necessity for renouncing the fundamental principles, on which that justice has been hitherto administered in England.—Your profest object is to create an impartial tribunal. The formation of a jury is so contrived, that it is scarcely possible it should not be impartial. Then why abandon the forms established for the choice of a jury?—The present law does so without reason or necessity. It allows the party a right of
peremptory
challenge only against thirteen of the Peers and twenty of the Commoners. Now, supposing it proper to admit of none but
peremptory
challenges, why should the exercise of that right be stopped, as long as a number of Lords and Commoners remain sufficient to form the tribunal. If, on the contrary, it be proper to limit the number of
peremptory
challenges, why should you restrain the party from challenging the remainder of the pannel for
cause assigned?
This, I affirm, is not only an unnecessary departure from the ancient constitution of juries, but a DENIAL of right, compleatly unjust and absurd.—It is unjust to force the party to include his challenges for
a cause assigned
within the number, which you allow him to make
peremptory.
The result may be, that you will allow no
peremptory
challenge at all; since it may very easily happen, that all his
peremptory
challenges may lie against persons, against whom he might be ready and desirous to object for specific reason. But can any thing be conceived more absurd than that the law should yield perhaps to his malignity, perhaps to his caprice, and refuse to listen to his reason?
Against the three Judges, there is to be no challenge allowed, for reasons I presume deduced from the sanctity of their character and the respect due to their station. To the former I shall only say, that Judges may be better men than we are, but they are men; and that cases occur, in which an exception to a Judge, even in the discharge of his proper office, would be deemed valid, and would force him to retire. To the latter, I say, that a Judge has no right to carry along with him the respect, due to his proper station, when he descends to any other. I will not challenge him, as long as he maintains the post, at which the constitution placed him.—But, if he accepts of another office, if he takes upon him to find the facts, if he condescends to be a juryman, he must accept of that office with all its conditions. He has no claim to the privilege of a Judge, while he does that, which no Judge in this kingdom ever did before.—But is it impossible that one of the three Judges may be an enemy of the party accused? Would you really appoint such a Judge to try such a party? and, if the objection were so stated, would you affirm that it deserved no attention?—If, even without supposing a direct enmity, two men were known to have stood on terms unfriendly to each other, would you appoint one of them to judge the other? Let me appeal to the honour of the learned gentleman opposite to me, who knows what has passed in India. If
I
were the person accused, would he choose Sir Elijah Impey to be my Judge? That gentleman, I presume, would decline the office. But for myself I can affirm, that if
he
should be accused, I would never sit in judgment upon him. I may be prosecutor,—I may be evidence against him;—but I will never give a judicial vote in any cause, in which Sir Elijah Impey may be party, unless I can safely give it for him.
The tribunal, at last obtained, professedly consists of thirteen persons. For what reason this small number should afterwards be reduced to seven is not explained.—The whole power of the thirteen is finally committed to a
quorum
of seven, provided one of this number be a Judge.—In so very small a number it might be thought, that an unanimous judgment might safely be demanded. In finding the facts at least, it might be expected that their verdict should be unanimous. But, in this tribunal, a new and dangerous principle of decision is assumed. The sense of the Court is to be bound and determined by a majority of votes; that is, the facts may be found, the law determined, and the punishment awarded by four persons out of seven; and the Court may be so composed and divided, that possibly one Lord, and three Judges may find all the facts against the finding of three Commoners, or
vice versâ,
that four Commoners may determine the law against the three Judges. What they
will
do, I know not; but this is what they
may
do under the present institution.
We are now to consider the course and conduct of the trial. With respect to the trial of crimes in general, I presume it will not be denied, that two conditions are essential to the due administration of justice, at least that they have been hitherto thought so in England. The first is peculiar to our constitution, that the jury shall not separate before they have agreed upon their verdict. The law is cautious of exposing the virtue of jurymen to the temptations, which might be thrown in their way, if they were suffered to go out of Court, and disperse before they had found their verdict. The law will not even confide in their judgment so far, as to suffer them to listen to any extrajudicial evidence whatever. When once they are shut up, all access to them is forbidden. Let the House compare the wisdom of these precautions with the latitude allowed to the present tribunal. The Commissioners may adjourn from day to day
ad libitum.
—They may mix in society, and listen to all manner of discourses upon the subject matter of the charge depending before them. If the party accused be a very guilty man, he must be wealthy in the same proportion; and if the evidence should appear to go against him, what security have you that he will not attempt to corrupt the integrity of one or other of the Commissioners, whom he or his agents may meet out of Court and converse with every day? Since a majority is to decide, it may happen that, by corrupting one out of seven, the judgment may be in his favor. In all these observations, Sir, I earnestly desire it to be understood that I speak of institutions, and not of persons. The Lords and Commoners, who compose the present Pannel, are honourable men. So are we all. But let it be remembered, that laws are made to guard against what men
may
do, not to trust to what they
will
do.—Admitting corruption to be impracticable, there are other sorts of influence, against which the virtue of men should equally be defended. The language of personal enmity, or public odium on one side, or of interest, solicitation, or compassion, on the other, may engage the passions, or bias the judgment of the Judge. But, if any of these Lords and Commoners should be connected with the administration, and if the party accused should be a person whom the Minister should think it necessary to seduce or intimidate; whose fortune, for example, might intitle him to a seat in the House of Commons, then look to the consequence. Who will venture to affirm that it is impossible for a Commissioner, so connected, to sound the inclinations of the minister; to apprise him what turn the trial is likely to take, and to receive his instructions from time to time for his own subsequent conduct.—Of the present minister I am ready to admit, that so base a practise is not to be suspected. Concerning his personal honour, I am ready to take every thing for granted, that his warmest friends can say of him. My argument is applied generally to things, not to men, and stands abstracted from all personal considerations whatsoever.
The second great condition, which I deem to be essential to the administration of justice, and which is admitted to be so not only in this country, but in every other where justice is really administered, is that the trial should be
in open Court.
The law of England does not allow that justice can be done in secret; therefore will not suffer the doors of a Court of Justice to be shut. The wisdom of our ancestors has deemed the inspection of the public eye upon the proceedings of the Court, to be a powerful guard over the virtue of the Judge; and the best and wisest of our Judges have thought it no impeachment of their integrity. An open trial obliges the Judge, in every question that comes before him, to choose between his duty, and the loss of his reputation.—On the face of the present law, I see nothing that provides for and secures a public trial. For any thing that appears to the contrary, the Commissioners may sit, in close recess, in one of the Chambers of the Treasury. If I am mistaken on this point, I wish to be corrected, for I should be sorry to load the law with an ill-founded imputation.
Sir, it requires but little ability to shew the dangerous nature and effect of these invasions in the plan and system of the laws of England. He, who is able to state the fact, demonstrates the consequence. But we have been told already, and I expect we shall be told again, that necessity superscedes all principles; that there is no alternative; that offences, committed in India, are of such a nature that it is impossible to bring them within the cognizance, and of course to subject them to the verdict of a Jury. It may be so.—But I own it is a proposition that passes my understanding. When, by virtue of the powers already vested in the Courts below, the necessary evidence from depositions taken in writing shall be obtained from India, why the whole of it may not be reduced to distinct issues of fact, on which a Jury may pronounce as well as any other tribunal, is a question, to which I am not able to conceive a satisfactory answer. We are not speaking of political offences, of crimes against the state, which in many cases perhaps can only be established by a minute examination of letters, instructions and correspondence, and by a careful deduction and inference from intricate proceedings to certain motives. The declared and only object of the present law is
to prosecute and bring to speedy and condign punishment, persons guilty of the
crime of extortion and other misdemeanors.
—These offences, if committed, are matters of fact, on which, it remains to be proved that a Jury of English Commoners cannot find a verdict, but on which a Court, consisting of Judges, Lords and Commoners, can very well find a verdict, declare the law, and pronounce a judgement. I distrust my own knowledge too much, and see too much legal learning opposed to me, to undertake to prove a negative to that proposition. Yet even that task would have been undertaken, and I doubt not with success, by a learned Gentleman
Mr. John Lee.
, whose heart as well as his learning goes with me on this subject, if a severe illness, unfortunately for me and for the public, had not prevented his attendance this day. I lament his absence, though I know I shall not be left without some powerful legal support.—Strictly and properly, the burthen of the proof lies on the affirmative. They, who innovate, are bound to shew a sufficient positive reason for the innovation. They are bound to the direct proof of this clear distinct proposition; namely, that a jury
is
absolutely incapable, and cannot by any means be made capable of trying an act of extortion, or other misdemeanor committed in India. No doctrine, that does not clearly and distinctly go to the full extent and meaning of this proposition, will support the present law. The innovation is avowedly founded on a supposed necessity, and no alternative. But if a Jury either is, or can by any means be made capable of the service, you
have
an alternative; the necessity does not exist, and you have no pretence to innovate. Sir, this will be a serious undertaking for men of rank and character in the profession. It is not a trial of skill between cunning knowledge and unlearned reason—It is not a victory of legal argument over an unlearned individual, contending for his birth-right, which, on such a question, will satisfy the sense and judgment of this nation. The learned person, who ventures to affirm that the proposition is true in the terms, in which I have stated it, should remember that his character is at stake, that he acts under the inspection of the public eye, and that he is going to choose between his duty and the loss of his reputation for ever. I will tell him too, that I have good reason to believe, though I do not directly assert, that the first law authorities in this kingdom are against him. I trust he will find it so, when the question comes to be agitated, as ere long it must be, in another place.
Before I conclude this part of my subject, I flatter myself the House will allow me to remind them of the little triumph that prevailed, when a right honourable friend of of mine
Mr. Burke.
declared very lately, that, after long and serious deliberation, he preferred the trial by impeachment to that of prosecution in the courts below, for the purpose of bringing a capital Indian delinquent to justice; as if my honourable friend had thereby abandoned the trial by jury, and furnished the advocates of the present tribunal with reason to conclude, that his opinion on this subject coincided with theirs. I hope to be able to convince the House, that the conclusion was precipitate, and the triumph premature. I should indeed have thought myself unfortunate, if the sentiments of my honourable friend had differed from mine on this important question. I should have distrusted my own most deliberate judgement, and should have acted with hesitation and reluctance even upon the most deliberate conviction. The relation, in which I stand to my honourable friend gives him every claim over me, that belongs to authority, and justifies submission. It is that of a being, that is instructed, to the being that instructs him.—Sir, I am not here to pronounce my honourable friend's panegyric; nor if I were equal to the task, would I now venture to undertake it. It would lead me to reflections, that would utterly discompose me—to the recollection of virtues unrewarded, and of veteran services growing grey under the neglect, if not ingratitude, of his country. If fame be a reward, he possesses it already. But I know he looks forward to a higher recompence. He confides and believes, as I do, that, in some other existence the virtues of men will meet with retribution;—where they, who have faithfully and gratuitously served mankind,
"
shall find the generous labour was not lost.
"
On the point in question, there is no difference between us. His opinion comes in aid of mine. Our minds are united, and our principles act together. If it be a contradiction to say that, for the punishment of crimes of a special quality and magnitude, the trial by impeachment is the safest, the most effectual, and the best; but that, for offences of a lower order, the established trial by jury should still be adhered to;—He, who maintains the affirmative, charges that very contradiction upon the laws, the institutions, the practise and the wisdom of England ever since Parliaments had a being. I am not afraid of erring with such powerful and venerable authority. The trial by impeachment is founded on a popular right coeval with the House of Commons. —It is as well known and as well established in our constitution, as the trial by jury, though it cannot occur so often. There are cases of crimes and of criminals, to which no other form of proceeding is adequate, to which no other mode of trial is commensurate. In such cases, the trial by impeachment does that, which no other trial can accomplish. It not only forces the crime to an inquiry, it not only demands justice against the criminal, and insures his punishment, but it provides for another object, which, in some instances, is not less interesting and necessary, than even justice and punishment. It clears the honour of the nation, in which such crimes are committed, and to which such criminals belong. It vindicates the character of this country from reproach in the judgment of mankind. These are the occasions, in which the pre-eminence of the wisdom and justice of England displays itself over all other nations. Other nations may rival us in our crimes;—but there the competition ends. In England alone, the dignity of the trial rises to a level with the eminence of the crime. When the House of Commons impeaches, it is a solemn appeal to the judgment of the world. When crimes are charged, by which the happiness, if not the existence of whole nations has been affected, by which states and princes, and all the highest orders of men as well as the lowest have been reduced, by the base and iron hand of upstart power, power to misery and ruin, the trial by impeachment makes proclamation to the kingdoms and princes of the world, to attend and look on, while the democracy of England advances in person to the charge, assumes the noble office of accuser, and forces the crime to trial before every thing that is great, and noble, and wise, and learned, and venerable in our country. The crime, the criminal, the prosecutor, the judges, the audience, and the trial, produce and constitute a scene, which no other country can exhibit to the world.—Let us hope, that the necessity of so solemn a proceeding will not often exist hereafter. The constitution has wisely reserved it for crimes of special magnitude; and rare, in proportion to their greatness. The same constitution has provided, with equal wisdom, for the punishment of offences of an inferior rank, by another course equally appropriated to its object. Let my honourable friend proceed therefore to the discharge of that elevated duty, to which his eminent abilities call him. There are still other duties to be performed by inferior abilities. While
he
travels on in the high road of impeachment, I shall endeavour to attend his course, in a narrower track, but in a parallel path. The lines, we act in, neither cross nor diverge. They are equally directed to the same general object of justice, and they run together.
Now, Sir, the principal part of my task is compleated; for, generally speaking, my present purpose is not so much to institute, as to correct. I mean to take away a great deal, but not to enact much in the place of it. In other circumstances, I should have thought myself bound to attempt a great deal more. If I had been united in views and sentiments with the acting administration of the country, and might therefore have hoped for their support in the plan, and their hearty concurrence in the execution of a new law on this subject, I certainly should have extended my thoughts to a comprehensive positive institution for the better government of India. But, since I do not stand in that predicament, I must adopt another conduct conformable to my situation. I must take care that whatever I propose,
rebus sic stantibus,
whether to correct or to enact, the thing I propose may execute itself, and not depend for its success on the temper of administration. I must take care not to aim at any thing but what may really be attainable under the present circumstances; and finally, that while I am endeavouring to do good, I may be sure of doing no mischief.—Acting on these limited principles, I shall proceed to state to you briefly and generally what I propose to do; if the motion should be carried, my purpose is to extirpate out of this Bill, the principal evil that belongs to it;—to revert to that, which was good before, or which, if not perfect in itself, has not been improved by innovation;—to strengthen that good if it be feeble, and not to enact much by positive institution. I would rebuild the House I live in from the foundation, if I could; but, since that is not in my power, I will endeavour to repair it.
Protesting, as I continue to do, against the form, in which the executive powers of the India Company in England are actually distributed, and declaring as I do that, in my opinion, a more absurd system of government could not have been imagined, I shall leave it as it stands. I perfectly know that an attempt to alter it would have no chance of succeeding;—nor would I trust the execution of a better system in the hands of men, who were adverse to it.
With respect to the government of Bengal, the alteration I shall propose, is no more than to revert to the former constitution, which this law has very unwisely altered. I would replace that government in a Governor-General and four Councillors, with nearly the same powers, with which they were invested by the Acts of 1773, and 1781. This alteration is easy and will execute itself. It has an accidental advantage too, which may recommend it to the favour of those, who possess the patronage of the Company. It revives a fifth office of Councillor with ten thousand pounds a year.
With respect to all that part of the law, which creates an inquisition, which compells the subjects of Great-Britain to answer interrogatories on oath, which endeavours to corrupt the virtues of private life by promising to make men rich, if they turn traitors and informers, and which deprives the subjects of this kingdom of their great chartered right, of their common-law right, and of their unalienable birth-right, a trial by their peers,—my intention is to tear it out of the statute book. I would erase it, if I could, from the memory of mankind.—I would replace the criminal law of England, in the state in which it stood.—If the powers already given to the Court of King's-Bench, for the purpose of obtaining evidence from India, be insufficient, I have no objection to enlarging them.—If the formality of pleading, or the present rules of evidence, or any other formality, stands in the way of justice, let the law be altered. But when the evidence is once collected and prepared, let it be submitted to a jury.—With respect to written evidence, though I allow it must be accepted, since in some cases it may be impossible to obtain any other, yet I think the present law abuses that concession, and carries the admission of written evidence to a most dangerous excess. It is enacted,
"that
all
writings, which shall have been transmitted from the East-Indies to the Court of Directors, by their officers and servants resident in the East-Indies, in the usual course of their correspondence with the said Court, and which in any manner relate to the subject matter of the charge, may be admitted to be offered in evidence."
The correspondence, so described, I dare say amounts to above a hundred large folio volumes every year. It comprehends not only the proceedings of the superior Councils in India, but those of their subordinate Councils, and all the correspondence of all of them with every individual, with whom they have any transaction or intercourse whatever. The law declares that every thing contained in this enormous heap of writing, may be admitted to be offered in evidence, and then the Court is to sift and examine it. The task would be a heavy one, even if a clear certain rule could be established for distinguishing the credible parts of such evidence from the rest. The effect of this clause will be to make the Company's correspondence an indirect channel of accusation between man and man, and to fill it with every thing that interest, jealousy, or malignity can invent, or that ignorance and folly can believe on any subject. I will not now attempt to state any precise limits, for this dangerous admission of written evidence. In general I shall only say, that authentic copies of the orders of the Court of Directors may be admitted as evidence, when the charge is for disobedience; and that every man's writing, or an undoubted copy of it, may be evidence against himself.—On this point I hope to be assisted with legal advice, and to be able to state my opinion with greater precision, if I am permitted to bring in the Bill; and here I shall conclude.—They, who may differ from me in opinion, cannot reasonably impute the part, I have taken in this business, to any personal apprehension or interest of my own. As to myself, I stand as clear of the law, as if I had never been in India; and as to particular friends or connections, I have now but very few in that country. Those few, I fear, have not prospered. If any of them are rich, they have no occasion to stay there. If any of them are conscious of having used improper means to acquire a fortune, they will naturally shelter themselves under the present law, by returning to England before January 1787. I attack this law, because in fact it holds out protection to the guilty, and tends to corrupt the innocent; because it introduces false principles into the administration of justice; because it is unjust in its immediate application, while it establishes a precedent dangerous to this kingdom; because it takes away the trial by jury, because it invades and alters the constitution, and because it shakes the security and threatens the liberty of every subject of Great-Britain.
I therefore move, That leave be given to bring in a Bill, to explain and amend an Act made in the twenty-fourth year of the reign of his present Majesty, intitled
"An Act for the better Regulation and Management of the Affairs of the East-India Company, and of the British Possessions in India; and for Establishing a Court of Judicature for the more speedy and effectual Trial of Persons, accused of Offences committed in the East-Indies.
Motion seconded by William Wyndham, Esq.
Previous question moved by Henry Dundas, Esq. and carried.
ON Monday the 13th of March, 1786, Mr. Francis, stated to the House, that, as certain measures of very great public importance were now in agitation, he thought that such measures ought not to be decided until they had endeavoured to collect, in a constitutional way, the general sense of the nation concerning them; namely, by calling the representatives of the people together.—That the impeachment of Mr. Hastings was an object of great public interest and concern. That the measure, which it was said the Chancellor of the Exchequer had in view, for applying the existing surplusses of revenue to the discharge of debt, was a subject of equal novelty and importance, and particularly called for the attention of a full House of Commons.—But above all he thought that, as Mr. Dundas had given notice of his intention to revise and correct the India Bill of 1784, there ought to be a Call of the House for the special purpose of reconsidering that Bill. That it had not been sufficiently attended to in the first instance, having been generally debated and carried in very thin houses.—That if the principles of this law, upon a more deliberate review of it, should be confirmed, they would take root in the constitution, and might never be eradicated. The question concerned the public liberty, and ought not to be decided without a full representation of the people. He therefore moved, That the House might be called over on Monday the 27th of March.
Mr. Fox seconded the motion. Mr. Pitt proposed that the call should be put off to the 4th of April. By this amendment the principal purpose of the motion was defeated.
On Friday the 17th of March, Mr. Dundas having moved for leave to bring in a Bill, in the terms of Mr. Francis's motion of the 7th: and the House having unanimously agreed to it, Mr. Francis moved
"That it be an instruction to the gentlemen appointed to prepare and bring in a bill to explain and amend an act passed in the 24th year of his Majesty's reign, intitled,
'an Act for the better Regulation and Management of the Affairs of the East India Company, and of the British Possessions in India, and for establishing a Court of Judicature for the more speedy and effectual Trial of Persons accused of Offences committed in the East Indies.'
That, in preparing the same, they do never lose sight of the effect, which any measure, to be adopted for the good government of our possessions in India, may have on our own constitution and our dearest interests at home; and particularly that in amending the said Act, they do take care that no part thereof shall be confirmed or re-enacted, by which the unalienable birth-right of every British subject to a trial by jury, as declared in Magna Charta, shall be taken away or impaired."
This Motion was rejected,
Ayes 16.
Noes 85.
HOUSE OF COMMONS,
Monday,
20
th March,
1786.
BILL to explain and amend the India Bill of 1784, read a second time.—Mr. Dundas moved, that it should be referred to a Committee of the whole House, on Wednesday the 22d.—Mr. Jolliffe moved an amendment to the Motion, viz. that instead of Wednesday, it should stand for Friday the 24th. The Question being put on this Amendment, the House divided,
For the Amendment 29.
Against it 53.
Mr. Dundas's Motion was then put and carried.
APPENDIX. No. I.
THE Trial by Jury, or the Country,
per patriam,
is also that trial by the Peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the great charter,
"
nullus liber homo copiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legate judicium parium suorum, vel per legem Terrae.
"
The founders of the English laws have with excellent forecast contrived, that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals, and neighbours, indifferently chosen, and superior to all suspicion. So that the liberties of England cannot but subsist, so long as this PALLADIUM remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial by Justices of the Peace, Commissioners of the Revenue, and Courts of Conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most
convenient
) yet let it be again remembered, that delays and little inconveniencies in the forms of Justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon THIS SACRED BULWARK OF THE NATION are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter difuse of juries in questions of the most momentous concern.
BLACKSTONE.
APPENDIX. No. II.
UNA contradizione fralle leggi e i sentimenti naturali all' uomo, nasce d'ai giuramenti, che si esigono dal reo, acciocche sia un uomo veridico, quando ha il maffimo interesse di esser falso; quasi che l' uomo potesse giurar da dovero di contribuire alla propria distruzione, quasi che la religione
on tacesse nella maggior parte degli uomini quando parla l'interesse.
Beccaria,
cap. 18.