thefe only under the preffure of fevere exaction. The written evidence being concluded, the Managers proceeded to enforce it in particular parts by oral testimony. Mr. Adam connected and explained the above evidence. At half past three, the firft evidence called was J. STABLES, Esq. This gentleman was fecond in Council.Being fworn, he stated that he went to India in 1759, and that in 1764 he was an officer in the army fent to Benares; that he had frequent opportunities of feeing Bulwant Sing; that he looked upon him as a very confiderable perfon, and that in the end of the year 1763, or beginning of 1754, a negociation was fet on foot to detach him from the Vizier, to whom he was tributary, and to engage him in the English intereft. That the country of Benares was full of people, and in high cultivation; that Bulwant Sing was treated by his fubjects with marks of affection very different from the attention fhewn to a mere Aumcel or Collector; that Benares was the refidence of a wealthy community of ther eligious order; and that the army in which he ferved were not permitted to enter the place. He was cross-examined by Mr. Plummer. was FOX CALCRAFT, Efq. Examined by Mr. GREY. Mr. Calcraft ftated that he was Aid du Camp to Major Popham, in the detachment that took the Fort of Bedjeygur;—that the treasures found in the Fort were divided as plunder among the army, which he underftood to be done under the authority of a letter from Mr. Haftings; that the plunder was divided the day after the feizure, and amounted to 25 lacks of rupees; that each fepoy had 100 rupees; that he was dispatched with the intelligence to Mr. Haftings, then at Chunar, 40 or 50 miles diftant, who expreffed vehement diffatisfaction at the divifion of the plunder among the foldiery at a time when the Company wanted the money; that he reprefented to Mr. Haftings the letter he had written to Major Popham, as giving an authority to the divifion.-This Mr. Haftings denied, said the letter was private, and gave no authority; that in all the proceedings of the war every officer had fubmitted to his advice, and that it was wrong to proceed to the divifion, which he called a foramble, on account of its precipitancy, without his concurrence, he being fo near. That in anfwer to this, he faid to Mr. Haftings, that the letter could not be a private one, as it contained public matter; and that the cause of the precipitancy was, that in the cafe of the Rohillas the troops had never received their booty. Mr. Haftings afked if it would be poffible to make the officers refund, and that if they would do fo he would use his influence with the Board to procure for them the money afterwards. This he told him he thought impoffible, as it was already too generally diffufed. He faid he brought a sword as a prefent from the officers to Mr. Haftings, and some ornamental plate to Mrs. Haftings, but he knew not whether they ultimately remained with them, as he delivered them to Mr. Markham; he believed they never did receive them, but he never heard what became of them. The above gentleman, extraordinary as it may feem, was brought by the Profecutors. His ideas and account of the general antipathy to REFUNDING, occafioned much entertainment. The Chancellor could not help fmiling. Mr. Calcraft was crofs-examined by Mr. The third witnefs called was Examined by Mr. ANSTRUTHER. As this gentleman was proceeding in his evidence, which did not feem to fatisfy the Managers, a question was propofed, tending to convey, that he gave another account before the House of Commons. Mr. Law took an objection to this queftion, as being contrary to the practice of the Courts for profecutors to arraign the credibility of the witnoffes they had themfelves called; nor was it proper that they fould go inte into a new enquiry after the cross-examination brought upon this, or after this, upon any was concluded. Mr. Fox faid the learned gentleman was miflaken as to the practice of that High Court. In the cafe of Lord Lovat, where a witnefs was apparently unwilling to anfwer a queftion to the extent which the Managers knew he could anfwer it, they chained the right, and they were permitted to refren his memory by afking him what he faid before. Mr. Adam contended that the practice of the Courts below was invariably to allow of Kading questions in the cafe of unwilling witneffes, which it was the misfortune of this profecution to have; for the witneffes whom they had to adduce in the couríc of the trial flood in fuch a relation to the prifoner, as would make it extremely difficult for the Counfel to come at the truth, if the Managers were deprived of the means of extracting it, which was invariably purfued in the Courts. The question being put by the Court, and anfwered in the affirmative, Mr. Anfruther read from the minutes a queftion and anfwer, purporting that heavy complaints were made by the Malfer, that the revenues were not fafficiently abundant--and he defired to know whether this question was not put, and this anfwer given. Mr. Law renewed his objection, and a pretty long debate took place, which occupied the remainder of the day, and prevented the Court from concluding on this charge. Mr. Law faid, it was contrary to all precedent in every Court of Judicature for profecutors first to examine their witnoffes, to foffer them to be cross-examined, and then finding the evidence not exactly what they expected, or what they wifhed it to be-to make an attempt to blaft the character of their own witneffes, and to take from them all credibility. This was a thing unheard of in judicature, and he truited that their Lordinips would not allow of a practice fo new and propofterous. He stated the matter in various ways, and argued that it was fundamentally improper. Mr. Flummer rofe to answer Mr. Adam --which he did in very ftrong and powerful terms. He requested the Court to advert to the novelty of this attempt-an attempt, he believed, before untried in any Court of Judicature whatever. A party call their en wirnofs-they examine him in their own way he is then cross-examine the ether party; and when the Profecutes find that he does not turn out the evidence they wishthey endeavour to destroy the teftimony thy have therafelves brought, and impeach his cre ity. The precedent was indeed new! but wiltler would it lead ? Every gentleman other caufe, would find his character taken away, his veracity called in question, and his oath difputed, because he did not answer the expectation of thofe who brought him. He believed more honourable witnesses, or names more refpectable, were not likely to be called on any future trial: and he trufted their Lordships would not be told by the Managers, however high they might hold themfelves, that you jhall MAKE A RULE for us. Ours is a peculiar cafe-we are to force out truth, and by violence must we come at it. But, my Lords, concluded Mr. Plummer-if to do a little right, you are to do a great wrongconfider what a precedent you establith; what high roads you lay open to error. If you determine this attempt in the Managers to be law, you argue againft all other cafes that we know of; and if you make a new Rule, as they would have you-future Courts in their turn, will leave or adopt it at their pleasure." Mr. Fox faid, the two learned Gentlemen had fpoken very ingenioufly; but it unfortunately happened, that they had totally and compleatly inificprefented or misunderstood the cafe. They had made the whole of their argument on the affumed fact, that the Managers were defirous to blaft the characters of the witnefs. No fuch thing was intended nor tried. He revolted at the idea of impeaching the characters of the witneffes he brought to the bar. The Managers felt that they were refponfible for their conduct, and they difdained to bring witneffes to the bar of that high tribunal, whom they previously know to be improper, and unfit to be credited. It fo happened, that, folicitous only of producing truth, they had endeavoured to do that which every Court invariably practifed in the cafe of an adverfe witnefs. They had endeavoured to refresh his memory by a leading queftion. Now, though on this, as well as on all queftions, he must enter his protest against the idea, that that High Court was to be guided by the practice of the Courts below; contending as he did, that their Lordships were to be guided by thofe rules only of which he acknowledged the propriety, yet ftill he was ready to put his ignorance against the legal knowledge of the learned Counfel, and to agree with them, that it was the conftant practice of the Courts to fuffer leading queftions to be put to unwilling witncifes, and that this was not confidered as an impeachment of their credibility. Even in cafes of life and death, it was common to say to a witnefs, This was not what you faid before the Magistrate, &c.; and that such refreshment of recollection was proper, and contributed to the production of truth. This was all that they denied in this inftance. The witness might have improved his knowledge by exercifing his memory on the point fince his examination before the Committee, and it would be no attack on his character, if on a more precife recolletion his evidence might be different now from what it was then. Mr. Michael Angelo Taylor and Mr. Burke concluded the debate with a few words; and it being paft fix o'clock, and quite dark, the Lords adjourned to their own Chalber, where they refolved to put a queftion on the point in difpute to the Judges; and adjourned the Court to Thurfday the 10th of April. [To be continued.] JOURNAL of the PROCEEDINGS of the FIFTH SESSION of the SIXTEENTH PARLIAMENT of GREAT BRITAIN. Their Lordships met for the purpofe of taking into confideration the petition of the Earl of Dumfries, impeaching the vote given to Lord Cathcart by a perfon claiming to be Lord Rutherford; and the Counter Petition from Lord Cathcart impeaching the vote given to the Earl of Dumfries, by a perfon claiming to be Lord Colville, of Ochiltree. It was agreed that their Lordships fhould begin by enquiring into the claim of the foi-difant Lord Rutherford. Some witneffes were called to the bar, to identify the perfon of the individual who had voted as Rutherford. This having been done, the Coanfel for Lord Dumfries began to thew caufe why his vote ought not to have been admitted; after which the Houle adjourned to MARCH 13, OF When their Lordihips, on the Motion of Lord Loughborough, adjourned the further proceedings on this subject. МАКСИ 17. The attention of their Lordships was this day taken up with the confideration of the Mutiny and India Declaratory Bills. On the former being read a fecond time, it was uppofed by The Duke of Manchester in that part which relates to the fix companies of military artificers, whom his Grace thought unneceffa ry; and therefore faid he never should confent that the right of trial by jury fhould be taken away from fo many fellow-fubjects, and a military trial fubflituted in its (tead. The Duke of Richmond defended the measure, which he acknowledged to be his own. There was not, he faid, a Court in Europe in which fuch a corps was not kept up, from a conviction that they were necellary; in many cafes the fate of an army, LORDS. and of an empire might depend upon therk. If two armies were in the field, and it was the wifh of one of them to come to an engagement, and of the other to avoid it, the latter might find no other means of preventing a battle, than by ftrongly intrenching himself, fo that he could not be attacked with. out evident difadvantage to the affailant; in fuch a cafe, 600 artificers would be of more fervice than three times their number of ordinary foldiers. The Earl of Hopetoun, Lords Rawdon and Cathcart, took part in the debate ; but the claufe against which the oppofition was directed, was at last fuffered to pafs without a divifion; and the Houfe ordered that the bill fhould be committed on a future day. The order for the fecond reading of the Declaratory Bill being then called for, The Duke of Norfolk informed their Lord. ships that he had a petition to deliver from feveral of the Proprietors of India Stock, praying that the fecond reading of the bill might be deferred till Thursday, because, according to the conftitution of the Compary, they could not procure an earlier fitting of the Court of Proprietors, whofe fenfe they wifhed to take on a meafure fo very interefting to them. The petition was brought up and read; but no order made in confequence of it. Lord Porchefter how ever oppofed the bill: He obferved that as it was brought in for the purpose of declaring the fenfe of an act paffed in 1784, it would be proper for their Lordfhips to take the opinion of the Judges, whether this bill was a fair construction of that act; for this purpofe his Lordship moved, "That it be propofed to the twelve Judges, whether, under the 24th of his prefent Majefly, troops fent to ludia for the defence of our poffeffions in that part of the world, but without the requifition of the Eift India Company, might be paid out of the revenues of the Company." The Lord Chancellor, and the Earls Fitzwilliam and Hopetoun fpoke for a few mi The Commons this day rofe from twenty to fixty. The thermometer ftood there at the highest. nates? nutes. The Houfe then divided upon Lord Porchefter's motion, which was negatived, there appearing Contents 30-Non-contents 73-Majority 43. It was then moved, that the bill be read immediately a fecond time, on which the Duke of Norfolk moved for Thursday.This produced a fecoud divifion, when there appeared Contents 33-Non-Contents 75Majority 42. A debate afterwards took place upon the bill, in which Lord Walfingham, the Duke of Richmond, and Lord Sandwich fupported it; and Lords Stormont, Carlifle, Rawdon, and Tankerville oppofed it. Lord Sandwich took an opportunity in the courfe of his fpeech, to blame the first Lord of the Admiralty, for not having kept up a naval force in India. Lord Howe faid he had acted upon the best grounds, and was ready to meet any enquiry that might be made into his conduct. The Marquis of Lanfdown alfo joined in blaming the Minifter, and fad the fmallness of our naval force in the Indian Seas, had been matter of fo much concern to him, that he had thought of bringing the fubject before Parliament. It was at laft moved that the bill be committed; accordingly, at one in the morning, their Lordships divided upon this motion, when the commitment was carried by a majority of ---48 Contents Nen-Contents Majority MARCH 18. 75 27 48 This day their Lordships fat in a committee on the India Declaratory Bill, Lord Chedworth in the chair; and a long converfation took place, which was the lefs interesting, as it turned chiefly, as is ufual in Committees, on words in claufes to be added or left out. Lord Loughborough faid, that as the preamble afferted that the powers claimed by the Board of Controul, were actually given by the Act of 1784, it would be proper that the clause in that Act, if any fuch could be found, which gives fuch powers, fhould be inferted in the preamble of the prefent bill, that it might be feen at once, whether the expofition of law contained in this declaratory bill was well or ill-founded. His Lordship made a motion to this effect. But it was oppofed by The Lord Chancellor as unneceffary and contrary to practice, as no fuch thing could be found in any Declaratory Act he had ever read-After fome converfation on this fubject, a divifion took place, and the motion was rejected by a Majority of-21 Contents 24 Non-Contents 45 Earl Fitzwilliam moved, that in that part which defcribes the Troops that the Board of Controul may fend to India, the word European fhould be left out, and the word British inferted in its room. By this Amendment his Lordthip faid he meant to restrain the Board of Controul from fending out what number of Troops they pleased, by putting it out of their power to fend any other than British. It was contended that the motion was unneceffary, as under the clause, as it originally ftood, the restraint was actually in existence. The Amendment was rejected without a divifion. Lord Loughborough moved a clause to limit the duration of the Act, of which the prefent Bill was an expofition, to the duration of the Company's Charter; and the reason his Lordship affigned for his motion was, that it would be unjust that the Company should be fubject to the Controul of the Board, after it should have loft the poffeffion of the territorial acquifitions, which alone had given a colour for any Controul at all. On the other hand it was contended, that it would be prepofterous and abfurd to fet limits to the duration of an Act, which in itself contained no limitation, by a Declaratory Bill, which was profeffedly explanatory of the for mer. His Lordship maintained the propriety and juftice of the measure; he confented, however, to withdraw it for the prefent, giving notice, however, that he would bring it forward again, in the shape of a rider, to be tacked to the Bill on the third reading; and he requested their Lordships would turn the matter in their minds in the mean time. The Committee having got through all the claufes, the House was refumed, and having ordered that the report should be received the next day, adjourned at nine o'clock. MARCH 19. The order of the day being read for the third reading of the Declaratory Bill, Lord Loughborough rose to move, "That the faid "act be continued only during the continuance "of the prefent charter." The question was put, "Whether the motion of the Noble Lord fhould stand,"which was negatived without a divifion. Lord Porchefter tried the fenfe of the House on the very identical question he had propofed propofed on the fecond reading, and with the Surely it is a propofition abfurd and monftrous like effect. The bill was then read a third time. Lord Loughborough observed, that from the papers on the table, it appeared that the four regiments, defined for India, wanted ahove Icoo men to complete them, If they were fent out in fuch a condition, and he did not fee how they could be completed in time for the failing of the Company's fh ps, he would be fully warranted in faying, that we were going to fend out skeletons of regiments, to fill up skeletons of regiments in India. Lord Sydney faid, that there was only one of the regiments that was, not nearly complete; and it was intended, that the privates of that one should be drafted into the other three; which, by that measure, would become complete: The officers of the fourth regi ment were to remain in England to recruit, and to complete their establishment in time to be fent out the next opportunity. Lord Loughborough obferved, that the Houfe was now to understand that only three regiments, confifting of fcarcely 2100 privates, were to fail this feafon; and that the fourth was to remain in this country in the pay of the Eaft-India Company from the day it was embodied. The Marquis of Lanfdown, Earl Stanhope, Lords Portchester, Loughborough, Stormont, Hawke, and Grantley fpoke against the Bill, which was defended by the Duke of Richmond, the Earls of Camden, Hopetoun, and Abingdon; Lords Sydney, Bulkley, Onflow, and the Lord Chancellor. on the very face of it, to call upon this House to declare what was and is law fubject to provifions which shall be. A declaration fo qualified is a new fpecics of bill of indemnity, which, unlike all others, does not content itfelf with holding forth terms of protection against the penal confequences of an illegal act committed, but retrospectively alters and reverfes the nature and effence of the action itfelf from its very origin, if certain profpective conditions be fubfequently obferved. 2dly. Because the preamble of the prefent bill, which must be prefumed to fet forth the legal grounds of the propofed declaration, does not appear to us in reality to contain any fuch grounds. It offers nothing more than partial and pieced extracts from various fections of the 24th of his prefent Majefty, two of which evidently convey only general powers to be exercifed in "fuch manner as in the faid A&t is directed," that is, fubject to limitations and modifications not recited in the preamble; and the third of these extracts, which is taken from the conclufion of the 11th section of the Act abovementioned, is in truth part of a claufe imperative on the Directors, not enabling to the Commiflioners; binding the former to obey the orders of the latter, (that is, all fuch orders as they may lawfully iffue under other parts of the Act) but not conferring on the latter any portion of diftinét power. Their powers, whatever they may be, must be fought in the enabling clanfes of the Act, by which alone this imperative On a divifion the Bill paffed by a majority claufe can be conftrued, but of which not a 71 Non Contents The following proteft was immediately entered. DISSENTIENT. ift. Because we object altogether to the very ftile and form of the prefent bill, inafmuch as it purports to be a Declaratory Bill of a kind as dangerous in its application as it is certainly unusual, if not new in its principle. If the Act of the 24th of his Majesty be clearly expreffed, any declaration of its fenfe is evidently unnecessary; if it be worded, whether from accident or design, in dark and equivocal terms, we conceive, that, in order to do away every ambiguity, the mode most open and candid in itfelf, as well as most regular and conformable to the ufage of Parliament, would have been by a bill to explain and amend, and not to declare.—And we cannot but behold this extraordinary bill with yet greater alarm, when it has been avowed that it is intended to operate as an Act of Indemity for paft meafures not explicitly Rated. VOL. XIII. trace is to be difcovered in the preamble. 3dly. Becaufe the limitations and restraints on the power of the Commiilioners, which are now impofed for the first time in this bill, cry with them an intimation highly derogatory to the honour and wifdom of this Houfe; inafmuch as they imp'y, that in the very moment when this Houfe felt the mott tender apprehenfions for the fafety of chattered rights, and when they were molt anxiously alarmed for the confequences of transferring the power and patronage of the Company even for a time, they confcioully and deliberately paffed an act, by which thofe rights were to be fuperfeded, and that power and patronage in effect vefted in the Board of Controul for ever, without fufficient checks and guards to protect the one, or to prevent the corrupt ufe of the other. The authors of thefe limiting and restraining cloufes have left to the majority of this Houfe no other refuge from the imputation of this inconfiftency, but in an ignorance of that meaning, which we are now called upon to declare. |