My Lords, the situation is new and awful: the situation is such as, I believe, and I am sure, has nothing like it on the records of Parliament, nor, probably, in the history of mankind. My Lords, it is not only new and singular, but, I believe, to many persons, who do not look into the true interior nature of affairs, it may appear that it would be to me as mortifying as it is unprecedented. But, my Lords, I have in this situation, and upon the consideration of all the circumstances, something more to feed my mind with than mere consolation; because, my Lords, I look upon the whole of these circumstances, considered together, as the strongest, the most decisive, and the least equivocal proof which the Commons of Great Britain can give of their sincerity and their zeal in this prosecution. My Lords, is it from a mistaken tenderness or a blind partiality to me, that, thus censured, they have sent me to this place? No, my Lords, it is because they feel, and recognize in their own breasts, that active principle of justice, that zeal for the relief of the people of India, that zeal for the honor of Great Britain, which characterizes me and my excellent associates, that, in spite of any defects, in consequence of that zeal which they applaud, and while they censure its mistakes, and, because they censure its mistakes, do but more applaud, they have sent me to this place, instructed, but not dismayed, to pursue this prosecution against Warren Hastings, Esquire. Your Lordships will therefore be pleased to consider this, as I consider it, not as a thing honorable to me, in the first place, but as honorable to the Commons of Great Britain, in whose honor the national glory is deeply concerned; and I shall suffer myself with pleasure to be sacrificed, perhaps, in what is dearer to me than my life, my reputation, rather than let it be supposed that the Commons should for one moment have faltered in their duty. I, my Lords, on the one hand, feeling myself supported and encouraged, feeling protection and countenance from this admonition and warning which has been given to me, will show myself, on the other hand, not unworthy so great and distinguished a mark of the favor of the Commons,—a mark of favor not the consequence of flattery, but of opinion. I shall feel animated and encouraged by so noble a reward as I shall always consider the confidence of the Commons to be: the only reward, but a rich reward, which I have received for the toils and labors of a long life.
The Commons, then, thus vindicated, and myself thus encouraged, I shall proceed to make good the charge in which the honor of the Commons, that is, the national honor, is so deeply concerned. For, my Lords, if any circumstance of weakness, if any feebleness of nerve, if any yielding to weak and popular opinions and delusions were to shake us, consider what the situation of this country would be. This prosecution, if weakly conceived, ill digested, or intemperately pursued, ought never to have been brought to your Lordships' bar: but being brought to your Lordships' bar, the nation is committed to it, and the least appearance of uncertainty in our minds would disgrace us forever. Esto perpetua, has been said. To the glory of this nation, much more be it said, Esto perpetua; and I will say, that, as we have raised and exhibited a theatre of justice which has excited the admiration of all Europe, there would be a sort of lustre in our infamy, and a splendor in the disgrace that we should bring upon ourselves, if we should, just at that moment, turn that theatre of our glory into a spectacle of dishonor beyond what has ever happened to any country of the world.
The Commons of Great Britain, whilst willing to keep a strong and firm hand over all those who represent them in any business, do at the same time encourage them in the prosecution of it, by allowing them a just discretion and latitude wherever their own orders have not marked a distinction. I shall therefore go on with the more cheerful confidence, not only for the reasons that I have stated, but for another and material reason. I know and am satisfied, that, in the nobleness of your judgment, you will always make a distinction between the person that gives the order and the organ that is to execute it. The House of Commons know no such thing as indiscretion, imprudence, or impropriety: it is otherwise with their instruments. Your Lordships very well know, that, if you hear anything that shall appear to you to be regular, apt to bring forward the charge, just, prudent, cogent, you are to give it to the Commons of Great Britain in Parliament assembled; if you should hear from me (and it must be from me alone, and not from any other member of the Committee) anything that is unworthy of that situation, that comes feeble, weak, indigested, or ill-prepared, you are to attribute that to the instrument. Your Lordships' judgment would do this without my saying it. But whilst I claim it on the part of the Commons for their dignity, I claim for myself the necessary indulgence that must be given to all weakness. Your Lordships, then, will impute it where you would have imputed it without my desire. It is a distinction you would naturally have made, and the rather because what is alleged by us at the bar is not the ground upon which you are to give judgment. If not only I, but the whole body of managers, had made use of any such expressions as I made use of,—even if the Commons of Great Britain in Parliament assembled, if the collective body of Parliament, if the voice of Europe, had used them,—if we had spoken with the tongues of men and angels, you, in the seat of judicature, are not to regard what we say, but what we prove; you are to consider whether the charge is well substantiated, and proof brought out by legal inference and argument. You know, and I am sure the habits of judging which your Lordships have acquired by sitting in judgment must better inform you than any other men, that the duties of life, in order to be well performed, must be methodized, separated, arranged, and harmonized in such a manner that they shall not clash with one another, but each have a department assigned and separated to itself. My Lords, in that manner it is that we, the prosecutors, have nothing to do with the principles which are to guide the judgment, that we have nothing to do with the defence of the prisoner. Your Lordships well know, that, when we come before you, you hear a party; that, when the accused come before you, you hear a party: that it is for you to doubt, and wait till you come to the close, before you decide; that it is for us, the prosecutors, to have decided before we came here. To act as prosecutors, we ought to have no doubt or hesitation, nothing trembling or quivering in our minds upon the occasion. We ought to be fully convinced of guilt, before we come to you. It is, then, our business to bring forward the proofs,—to enforce them with all the clearness, illustration, example, that we can bring forward,—that we are to show the circumstances that can aggravate the guilt,—that we are to go further, show the mischievous consequences and tendency of those crimes to society,—and that we are, if able so to do, to arouse and awaken in the minds of all that hear us those generous and noble sympathies which Providence has planted in the breasts of all men, to be the true guardians of the common rights of humanity. Your Lordships know that this is the duty of the prosecutors, and that therefore we are not to consider the defence of the party, which is wisely and properly left to himself; but we are to press the accusation with all the energy of which it is capable, and to come with minds perfectly convinced before an august and awful tribunal which at once tries the accuser and the accused.
Having stated thus much with respect to the Commons, I am to read to your Lordships the resolution which the Commons have come to upon this great occasion, and upon which I shall take the liberty to say a very few words.
My Lords, the Commons have resolved last night, and I did not see the resolution till this morning, "that no direction or authority was given by this House to the committee appointed to manage the impeachment against Warren Hastings, Esquire, to make any charge or allegation against the said Warren Hastings respecting the condemnation or execution of Nundcomar; and that the words spoken by the Right Honorable Edmund Burke, one of the said managers, videlicet, that he (meaning Mr. Hastings) murdered that man (meaning Nundcomar) by the hands of Sir Elijah Impey, ought not to have been spoken."
My Lords, this is the resolution of the House of Commons. Your Lordships well know and remember my having used such or similar words, and the end and purpose for which I used them. I owe a few words of explanation to the Commons of Great Britain, who attend in a committee of the whole House to be the observers and spectators of my conduct. I owe it to your Lordships, I owe it to this great auditory, I owe it to the present times and to posterity, to make some apology for a proceeding which has drawn upon me the disavowal of the House which I represent. Your Lordships will remember that this charge which I have opened to your Lordships is primarily a charge founded upon the evidence of the Rajah Nundcomar; and consequently I thought myself obliged, I thought it a part of my duty, to support the credit of that person, who is the principal evidence to support the direct charge that is brought before your Lordships. I knew that Mr. Hastings, in his anticipated defence before the House of Commons, had attempted to shake the credit of that witness. I therefore thought myself justified in informing your Lordships, and in warning him, that, if he did attempt to shake the credit of an important witness against him by an allegation of his having been condemned and executed for a forgery, I would endeavor to support his credit by attacking that very prosecution which brought on that condemnation and that execution; and that I did consider it, and would lay grounds before your Lordships to prove it, to be a murder committed, instead of a justification set up, or that ought to be set up.
Now, my Lords, I am ordered by the Commons no longer to persist in that declaration; and I, who know nothing in this place, and ought to know nothing in this place, but obedience to the Commons, do mean, when Mr. Hastings makes that objection (if he shall be advised to make it) against the credit of Rajah Nundcomar, not thus to support that credit; and therefore that objection to the credit of the witness must go unrefuted by me. My Lords, I must admit, perhaps against my private judgment, (but that is of no consideration for your Lordships, when opposed to the judgment of the House of Commons,) or, at least, not contest, that a first minister of state, in a great kingdom, who had the benefit of the administration, and of the entire and absolute command of a revenue of fifteen hundred thousand pounds a year, had been guilty of a paltry forgery in Calcutta; that this man, who had been guilty of this paltry forgery, had waited for his sentence and his punishment, till a body of English judges, armed with an English statute, came to Calcutta; and that this happened at the very happy nick and moment when he was accusing Mr. Hastings of the bribery with which we now in the name of the Commons charge him; that it was owing to an entirely fortuitous concurrence of circumstances, in which Mr. Hastings had no share, or that it was owing to something beyond this, something that is rather pious than fortuitous, namely, that, as Mr. Hastings tells you himself, "all persuasions of men were impressed with a superstitious belief that a fortunate influence directed all my actions to their destined ends." I, not being at that time infected with the superstition, and considering what I thought Mr. Hastings's guilt to be, and what I must prove it to be as well as I can, did not believe that Providence did watch over Mr. Hastings, so as in the nick of time, like a god in a machine, to come down to save him in the moment of his imminent peril and distress: I did not think so, but I must not say so.
But now, to show that it was not weakly, loosely, or idly, that I took up this business, or that I anticipated a defence which it was not probable for Mr. Hastings to make, (and I wish to speak to your Lordships in the first instance, but to the Commons in the next,) I will read part of Mr. Hastings's defence before the House of Commons: it is in evidence before your Lordships. He says,—"My accuser" (meaning myself, then acting as a private member of Parliament) "charges me with 'the receipt of large sums of money, corruptly taken before the promulgation of the Regulating Act of 1773, contrary to my covenants with the Company, and with the receipt of very large sums taken since, in defiance of that law, and contrary to my declared sense of its provisions.' And he ushers in this charge in the following pompous diction: 'That in March, 1775, the late Rajah Nundcomar, a native Hindoo of the highest caste in his religion, and of the highest rank in society, by the offices which he had held under the country government, did lay before the Council an account of various sums of money,' &c. It would naturally strike every person ignorant of the character of Nundcomar, that an accusation made by a person of the highest caste in his religion and of the highest rank by his offices demanded particular notice, and acquired a considerable degree of credit, from a prevalent association of ideas that a nice sense of honor is connected with an elevated rank of life: but when this honorable House is informed that my accuser knew (though he suppressed the facts) that this person, of high rank and high caste, had forfeited every pretension to honor, veracity, and credit,—that there are facts recorded on the very Proceedings which my accuser partially quotes, proving this man to have been guilty of a most flagrant forgery of letters from Munny Begum and the Nabob Yeteram ul Dowlah, (independent of the forgery for which he suffered death,) of the most deliberate treachery to the state, for which he was confined, by the orders of the Court of Directors, to the limits of the town of Calcutta, in order to prevent his dangerous intrigues, and of having violated every principle of common honesty in private life,—I say, when this honorable House is acquainted it is from mutilated and garbled assertions, founded on the testimony of such an evidence, without the whole matter being fairly stated, I do hope and trust it will be sufficient for them to reject now these vague and unsupported charges, in like manner as they were before rejected by the Court of Directors and his Majesty's ministers, when they were first made by General Clavering, Colonel Monson, and Mr. Francis.—I must here interrupt the course of my defence to explain on what grounds I employed or had any connection with a man of so flagitious a character as Nundcomar."
My Lords, I hope this was a good and reasonable ground for me to anticipate the defence which Mr. Hastings would make in this House,—namely, on the known, recognized, infamous character of Nundcomar, with regard to certain proceedings there charged at large, with regard to one forgery for which he suffered and two other forgeries with which Mr. Hastings charged him. I, who found that the Commons of Great Britain had received that very identical charge of Nundcomar, and given it to me in trust to make it good, did naturally, I hope excusably, (for that is the only ground upon which I stand,) endeavor to support that credit upon which the House acted. I hope I did so; and I hope that the goodness of that intention may excuse me, if I went a little too far on that occasion. I would have endeavored to support that credit, which it was much Mr. Hastings's interest to shake, and which he had before attempted to shake.
Your Lordships will have the goodness to suppose me now making my apology, and by no manner of means intending to persist either in this, or in anything which the House of Commons shall desire me not to declare in their name. But the House of Commons has not denied me the liberty to make you this just apology: God forbid they should! for they would be guilty of great injustice, if they did. The House of Commons, whom I represent, will likewise excuse me, their representative, whilst I have been endeavoring to support their characters in the face of the world, and to make an apology, and only an humble apology, for my conduct, for having considered that act in the light that I represented it,—and which I did merely from my private opinion, without any formal instruction from the House. For there is no doubt that the House is perfectly right, inasmuch as the House did neither formally instruct me nor at all forbid my making use of such an argument; and therefore I have given your Lordships the reason why it was fit to make use of such argument,—if it was right to make use of it. I am in the memory of your Lordships that I did conceive it to be relevant, and it was by the poverty of the language I was led to express my private feelings under the name of a murder. For, if the language had furnished me, under the impression of those feelings, with a word sufficient to convey the complicated atrocity of that act, as I felt it in my mind, I would not have made use of the word murder. It was on account of the language furnishing me with no other I was obliged to use that word. Your Lordships do not imagine, I hope, that I used that word in any other than a moral and popular sense, or that I used it in the legal and technical sense of the word murder. Your Lordships know that I could not bring before this bar any commoner of Great Britain on a charge for murder. I am not so ignorant of the laws and constitution of my country. I expressed an act which I conceived to be of an atrocious and evil nature, and partaking of some of the moral evil consequences of that crime. What led me into that error? Nine years' meditation upon that subject.