[The Lord Chancellor here remarked, that what had been just read was matter of the 17th article of the charge and parts of the answer to it, and that, upon looking back to the former proceedings, it has escaped his attention, if any matter contained in the 17th article had been made matter of the charge; that it therefore seemed to him that it could not be brought in upon a reply, not having been made matter of the charge originally.
Mr. Burke. My Lords, I have to say to this, that I believe you have heard these facts made matter of charge by the House of Commons, that I conceive they have been admitted by the prisoner, and that the Commons have nothing to do with the proofs of anything in their charge which is fully and in terms admitted. The proofs which they have produced to your Lordships were upon matters which were contested; but here the facts are admitted in the fullest manner. We neither have abandoned them, intended to abandon them, or ever shall abandon them; we have made them, as a charge, upon record; the answers to them have been recorded, which answers are complete admissions of every fact in the charge.
Lord Chancellor. I do not make myself understood. The objection is not that there has not been evidence given upon the 17th article, but at the close of the case on the part of the Managers for the House of Commons no mention having been made of the matter contained in the 17th article, that therefore, although it may all have been admitted by the answer to be true, yet in justice, if from that answer you ground the charge, it is necessary the defendant should be heard upon it.
Mr. Burke. If your Lordships choose that the defendant shall be heard upon it, we have no kind of objection, nor ever had, or proposed an objection to the defendant being heard upon it. Your Lordships know that the defendant's counsel value themselves upon having abandoned their defence against certain parts of the charge; your Lordships know that they declared that they broke off thus in the middle of their defence in order to expedite this business.
Lord Chancellor. Referring to the proceedings, I think it a matter perfectly clear, that, in the course of the charge, after certain articles had been gone through, the Managers for the Commons closed the case there, leaving therefore all the other articles, excepting those that had been discussed, as matters standing with the answers against them, but not insisted upon in making out the charge. Of course, therefore, if the defendant had gone into any of those articles, the defendant must have been stopped upon them, because he would then have been making a case in defence to that which had not been made a case in the prosecution. The objection, therefore, is not at all that no evidence has been examined. To be sure, it would be an answer to that to say, you are now proceeding upon an admission; but even upon those facts that are admitted, (if the facts are admitted that are insisted upon as matter in charge,) that should come in the original state of the cause, and the defendant in common justice must be heard upon that, and then, and then only, come the observations in reply.
Mr. Burke. We do not know, not are informed, that any charge, information, or indictment, that is before the court, and upon record, and is not denied by the defendant, does not stand in full force against him. We conceive it to be so; we conceive it to be agreeable to the analogy of all proceedings; and the reason why we did not go into and insist upon it was, that, having a very long cause before us, and having the most full and complete admission upon this subject, we did not proceed further in it. The defendant defends himself by averring that it was not his duty. It was not our business to prove that it was his duty. It was he that admitted the facts assumed to be the foundation of his duty; the negative he was bound to prove, and he never offered to prove it. All that I can say upon this point is, that his delinquency in the matter in question appeared to us to be a clear, distinct case,—to be a great offence,—an offence charged upon the record, admitted upon the record, and never by us abandoned. As to his defence having been abandoned, we refer your Lordships to the last petition laid by him upon your table, (that libellous petition, which we speak of as a libel upon the House of Commons,) and which has no validity but as it asserts a matter of fact from the petitioner; and there you will find that he has declared explicitly, that, for the accommodation and ease of this business, and for its expedition, he did abandon his defence at a certain period.
Lord Chancellor. A charge consisting of a variety of articles in their nature (however connected with each other in their subject, but in their nature) distinct and specific, if only certain articles are pressed in the charge, to those articles only can a defence be applied; and all the other articles, that are not made matter of charge originally, have never, in the course of any proceeding whatever, been taken up originally in reply.
Mr. Burke. With great respect to your Lordship's judgment, we conceive that the objection taken from our not having at a certain period argued or observed upon the prisoner's answer to the articles not insisted upon is not conclusive; inasmuch as the record still stands, and as our charge still stands. It was never abandoned; and the defendant might have made a justification to it, if he had thought fit: he never did think fit so to do. If your Lordships think that we ought not to argue upon it here in our reply, because we did not argue upon it before,—well and good; but we have argued and do argue in our reply many things to which he never gave any answer at all. I shall beg leave, if your Lordships please, to retire with my fellow Managers for a moment, to consult whether we shall press this point or not. We shall not detain your Lordships many minutes.