Volume XI Part 7 (2/2)
existunt coram n.o.bis in praesenti Parliamento, secundum legem et consuetudinem hujus regni nostri Magnae Britanniae, audientur, sententientur, et adjudicentur_, const.i.tuteth the then Lord Chancellor High Steward (_hac vice_) to do and execute all things which to the office of High Steward in that behalf do belong. The receiving and recording the confession of the prisoners, which amounted to a conviction, so that nothing remained but proceeding to judgment, was certainly an exercise of judicial authority, which no a.s.sembly, how great soever, not having full cognizance of the cause, could exercise.
In the case of Lord Salisbury, who had been impeached by the Commons for high treason, the Lords, upon his pet.i.tion, allowed him the benefit of the act of general pardon pa.s.sed in the second year of William and Mary, so far as to discharge him from his imprisonment, upon a construction they put upon that act, no High Steward ever having been appointed in that case. On the 2d of October, 1690, upon reading the Earl's pet.i.tion, setting forth that he had been a prisoner for a year and nine months in the Tower, notwithstanding the late act of free and general pardon, and praying to be discharged, the Lords ordered the Judges to attend on the Monday following, to give their opinions whether the said Earl be pardoned by the act. On the 6th the Judges delivered their opinions, that, if his offence was committed before the 13th of February, 1688, and not in Ireland or beyond the seas, he is pardoned. Whereupon it was ordered that he be admitted to bail, and the next day he and his sureties entered into a recognizance of bail, himself in ten thousand pounds, and two sureties in five thousand pounds each; and on the 30th he and his sureties were, after a long debate, discharged from their recognizance.[91] It will not be material to inquire whether the House did right in discharging the Earl without giving the Commons an opportunity of being heard; since, in fact, they claimed and exercised a right of judicature without an High Steward,--which is the only use I make of this case.
They did the same in the case of the Earl of Carnwarth, the Lords Widdrington and Nairn, long after the High Steward's commission dissolved. These lords had judgment pa.s.sed on them at the same time that judgment was given against the Lords Derwent.w.a.ter, Nithsdale, and Kenmure; and judgment being given, the High Steward immediately broke his staff, and declared the commission dissolved. They continued prisoners in the Tower under reprieves, till the pa.s.sing the act of general pardon, in the 3d of King George I. On the 21st of November, 1717, the House being informed that these lords had severally entered into recognizances before one of the judges of the Court of King's Bench for their appearance in the House in this session of Parliament, and that the Lords Carnwarth and Widdrington were attending accordingly, and that the Lord Nairn was ill at Bath and could not then attend, the Lords Carnwarth and Widdrington were called in, and severally at the bar prayed that their appearance might be recorded; and likewise prayed the benefit of the act[92] for his Majesty's general and free pardon.
Whereupon the House ordered that their appearance be recorded, and that they attend again to-morrow, in order to plead the pardon; and the recognizance of the Lord Nairn was respited till that day fortnight. On the morrow the Lords Carnwarth and Widdrington, then attending, were called in; and the Lord Chancellor acquainted them severally, that it appeared by the records of the House that they severally stood attainted of high treason, and asked them severally what they had to say why they should not be remanded to the Tower of London. Thereupon they severally, upon their knees, prayed the benefit of the act, and that they might have their lives and liberty pursuant thereunto. And the Attorney-General, who then attended for that purpose, declaring that he had no objection on his Majesty's behalf to what was prayed, conceiving that those lords, not having made any escape since their conviction, were ent.i.tled to the benefit of the act, the House, after reading the clause in the act relating to that matter,[93] agreed that they should be allowed the benefit of the pardon, as to their lives and liberties, and discharged their recognizances, and gave them leave to depart without further day given for their appearance. On the 6th of December following, the like proceedings were had, and the like orders made, in the case of Lord Nairn.[94]
I observe that the Lord Chancellor did not ask these lords what they had to say why execution should not be awarded. There was, it is probable, some little delicacy as to that point. But since the allowance of the benefit of the act, as to life and liberty, which was all that was prayed, was an effectual bar to any future imprisonment on that account, and also to execution, and might have been pleaded as such in any court whatsoever, the whole proceeding must be admitted to have been in a court having complete jurisdiction in the case, notwithstanding the High Steward's commission had been long dissolved,--which is all the use I intended to make of this case.
I will not recapitulate: the cases I have cited, and the conclusions drawn from them, are brought into a very narrow compa.s.s. I will only add, that it would sound extremely harsh to say, that a court of criminal jurisdiction, founded in immemorial usage, and held in judgment of law before the King himself, can in any event whatever be under an utter incapacity of proceeding to trial and judgment, either of condemnation or acquittal, the ultimate objects of every criminal proceeding, without certain supplemental powers derived from the Crown.
These cases, with the observations I have made on them, I hope sufficiently warrant the opinion of the Judges upon that part of the second question, in the case of the late Earl Ferrers, which I have already mentioned,--and also what was advanced by the Lord Chief-Baron in his argument on that question,--”That, though the office of High Steward should happen to determine before execution done according to the judgment, yet the Court of the Peers in Parliament, where that judgment was given, would subsist for all the purposes of justice during the sitting of the Parliament,” and consequently, that, in the case supposed by the question, that court might appoint a new day for the execution.
No. II.
Questions referred by the Lords to the Judges, in the Impeachment of Warren Hastings, Esquire, and the Answers of the Judges.--Extracted from the Lords' Journals and Minutes.
_First._
_Question._--Whether, when a witness produced and examined in a criminal proceeding by a prosecutor disclaims all knowledge of any matter so interrogated, it be competent for such prosecutor to pursue such examination, by proposing a question containing the particulars of an answer supposed to have been made by such witness before a committee of the House of Commons, or in any other place, and by demanding of him whether the particulars so suggested were not the answer he had so made?
1788, February 29.--Pa. 418.
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the question of law put to them on Friday, the 29th of February last, as follows:--”That, when a witness produced and examined in a criminal proceeding by a prosecutor disclaims all knowledge of any matter so interrogated, it is not competent for such prosecutor to pursue such examination, by proposing a question containing the particulars of an answer supposed to have been made by such witness before a committee of the House of Commons, or in any other place, and by demanding of him whether the particulars so suggested were not the answer he had so made.”
1788, April 10.--Pa. 592.
_Second._
_Question._--Whether it be competent for the Managers to produce an examination taken without oath by the rest of the Council in the absence of Mr. Hastings, the Governor-General, charging Mr. Hastings with corruptly receiving 3,54,105 rupees, which examination came to his knowledge, and was by him transmitted to the Court of Directors as a proceeding of the said Councillors, in order to introduce the proof of his demeanor thereupon,--it being alleged by the Managers for the Commons, that he took no steps to clear himself, in the opinion of the said Directors, of the guilt thereby imputed, but that he took active means to prevent the examination by the said Councillors of his servant Cantoo Baboo?
1789, May 14--Pa. 677.
_Answer._--The Lord Chief-Baron of the Court of Exchequer delivered the unanimous opinion of the Judges upon the said question, in the negative,--and gave his reasons.
1789, May 20.--Pa. 718.
_Third._
_Question._--Whether the instructions from the Court of Directors of the United Company of Merchants of England trading to the East Indies, to Warren Hastings, Esquire, Governor-General, Lieutenant-General John Clavering, the Honorable George Monson, Richard Barwell, Esquire, and Philip Francis, Esquire, Councillors, (const.i.tuted and appointed the Governor-General and Council of the said United Company's Presidency of Fort William in Bengal, by an act of Parliament pa.s.sed in the last session, int.i.tuled, ”An act for establis.h.i.+ng certain regulations for the better management of the affairs of the East India Company, as well in India as in Europe,”) of the 29th of March, 1774, Par. 31, 32, and 35, the Consultation of the 11th March, 1775, the Consultation of the 13th of March, 1775, up to the time that Mr. Hastings left the Council, the Consultation of the 20th of March, 1775, the letter written by Mr.
Hastings to the Court of Directors on the 25th of March, 1775, (it being alleged that Mr. Hastings took no steps to explain or defend his conduct,) are sufficient to introduce the examination of Nundcomar, or the proceedings of the rest of the Councillors, on said 13th of March, after Mr. Hastings left the Council,--such examination and proceedings charging Mr. Hastings with, corruptly receiving 3,54,105 rupees?
1789, May 21.--Pa. 730.
<script>