Impey be required to lay before the House the original paper read by him at the bar on Monday last, and purporting to be a translation of a petition from the late Rajah Nundcomar, which was laid before the Governor-general and Council by the late sir John Clavering, in August 1775." The Solicitor-general contended, that it would be contrary to every principle of justice to strip sir Elijah Impey of an original document, which he considered as essential to his defence. He argued upon the glaring injustice of taking away from an accused person any part of the means of his defence, and contended, that the circumstance of the paper in question being the only one in existence, made the case still more harsh and unjustifiable. Possibly it might be right to call for a copy of the paper, but even whether that would not be going too far, he had his doubts; because every persou accused ought to be master of his own defence, so far as to have it in his power to reserve all his documents till such an occasion presented itself as the prisoner should think the fit one, for him to make the most advantage of the papers in his possession.

Mr. Francis answered, that he could not perceive, without astonishment, the least resistance made to the delivery of a paper which ex debito justitiæ, he had a right to claim. He was as far from wishing to strip sir Elijah of the means of his defence as the learned gentleman; but he saw not how the suffering the paper to be laid upon the table could be called stripping an accused person of the means of his defence. He asked for (no disclosure of any fact reserved and kept back by sir Elijah Impey for his future defence. The paper had been originally disclosed to the House by sir Elijah himself, and commented upon in a manner that tended to criminate him and those who had acted with him. He had a right therefoere to require that it might be delivered in at the table. The paper would not, by that means, be beyond the reach of sir Elijah. The reason why he called for the original paper was, because sir Elijah had stated at the bar, that it was delivered to him by Mr. Hastings, and that it contained alterations in his hand-writing. He wanted, therefore, to see what those alterations were, which he could not unless the original paper was deposited on the table. Gentlemen might rest assured, that he should have more to say upon that paper

than they were aware of [a laugh]. Some hon. members might make him the object of laughter, and endeavour to run him down; but he knew his cause was good, and he would persevere to maintain it at the hazard of every thing dear to him, in defence of his own honour, and the memory of general Clavering and col. Monson. He lamented the unfortunate event of his ever having gone to India, where he had sacrificed every thing to his duty; and, on his return to this country, what had been his reception? Instead of being thanked for his conduct, instead of being supported, he was made the object of party rancour and ill treatment. Last week there was not a man in the kingdom who did not think the conduct of sir Elijah Impey highly criminal; but all on a sudden, the tone was turned, and nothing but tenderness to sir Elijah was talked of; the other side appeared like a phalanx, whole bands of the learned gentlemen, even judges themselves, came down to support him, to greet him with early cheers, and encourage him with the smiles and the halloo of government. [A cry of Order!] He said he would endeavour to restrain the ardour of his temper, and return to the main object, the paper for which he had moved. He then renewed his arguments on that head, and concluded, that he should be unjustly treated if, after having heard himself stigmatized and criminated before the House by sir Elijah Impey, he was not allowed to call for the paper upon which it was grounded, in order that he might be able to answer it...

Mr. Pitt said, that the hon. gentleman had used a sort of language which be hoped he never should again hear, without feelings of repugnance and abhorrence. What! when a man accused of charges of a

nature in the last degree heavy and flagrant, was for the first time upon his defence, was it to be said that no tenderness ought to be shown him? There was not, he was persuaded, a gentleman possessed of the smallest regard for justice, who could listen with patience to such a suggestion; but, not contented with that, the hon. gentleman had thought proper to throw out a variety of imputations that were altogether unwarrantable. He was free to confess that he, for one, should be extremely glad, if the paper could be put upon the table, but that must, in his opi nion, depend altogether on the will of sir Elijah Impey. If that House were to compel a person accused to part with an

original document that he relied upon as material to his defence, or even oblige him to produce a copy of it, it would prove a violation of every principle of justice. They certainly had no more right to force a person accused to divest himself of any part of the means of his defence, than they had to put a criminal to the torture; and therefore, he conceived the proper way would be for the question to be altered, and that the Speaker should ask sir Elijah if he had any objection to deliver in a copy of the paper in question.

Mr. Fox said, that the right hon. gentleman had grossly misrepresented his hon. friend, by charging him with what he did not say, as most undoubtedly he had never said, that no tenderness ought to be shown to sir Elijah Impey. He would not agree that his hon. friend had no right to call upon sir Elijah for the paper. In his mind, he had a right to have the paper upon the table, and not merely to ask it as a favour, but to demand it as a right. Mr. Fox added, that from the moment he understood a written copy of the defence was not to be delivered in, he had entertained a very indifferent opinion of that defence, and considered it as a strong prepossession against sir Elijah. In like manner, if the paper referred to in the motion, was refused to be laid upon the table by sir Elijah, either the original, or a fac simile, or something of that nature, he should lay it wholly out of the case, and the House ought not to consider its contents as matter that had ever been mentioned in their hearing.

Mr. Farrer said, that he had a variety of papers in his possession, which he had shown to no person but sir Elijah Impey, and he had long hesitated before he could embrace this measure. He expected to be examined as a witness, and was ready to produce them. He mentioned that sír Elijah had declared at the bar, that a copy of every paper he referred to, was in the hands of Mr. Kenrick, a member of that House. The hon. gentleman might therefore possibly have the papers still.

Mr. Pitt rose again, and moved, as an amendment to the question, "That sir Elijah be asked whether he has any objection," &c. instead of "that sir Elijah be required to deliver, &c."

Mr. Burke insisted on the propriety of requiring sir Elijah to produce the paper. It would, he said, be a disgrace to the House, to suffer a delinquent to make use of a paper in his defence, and not vouch

for its authenticity by producing it. He warned the House not to admit a precedent of that nature. Any idle tales might thus be given in defence, and might make an impression on the hearers, while the vouchers were not demanded. He hoped, however, that the paper referred to would be considered as if it had not been at all mentioned by sir Elijah, provided it were not produced. It struck him as somewhat remarkable that it should be thought a hardship to be required to produce a paper, which had been voluntarily offered in evidence, and which was brought forward as a matter of recrimination on a member of that House.

The Master of the Rolls begged leave to remind Mr. Francis, that he had, on a former occasion, declared, that on account of having been so much concerned with sir Elijah Impey in India, he would not give any vote as a judge respecting him. If that expression meant any thing, it was, he conceived, that the hon. gentleman would not take an active part in the prosecution of sir Elijah; perhaps, therefore, it would not have been a breach of modesty if he had not sat there and acted as he had done; not that he meant to say there was any thing criminal in his having done so. With regard to the paper, sir Elijah certainly could not be compelled to deliver in any document that he had referred to as a part of his defence; but if he was called upon to produce a paper that he had read, and deliver a copy of it in to the table, and refused, then, most undoubtedly, that paper and its contents ought to be no more attended to, than if either the one or the other had never existed. What, however, he rose for principally was, to state, that, as he entered the House, the word judges' caught his ear, and when he sat down he heard the hon. gentleman talk of bands of learned gentlemen having come down to support sir Elijah Impey. Now, although, he had no reason to doubt the truth of the panegyric passed upon the hon. gentleman by the right hon, gentleman near him (Mr. Fox) and another hon. gentleman (Mr. Windham), for whose character he had a very great respect; yet, if the hon. gentleman was that immaculate person which his friends had described him to be, if he stood so much beyond all other men, so far aloof from all suspicion, it surely would become him not to be overforward to charge bad intentions upon other men, and in the very moment that he was complaining of a paper referred to

in the course of sir Elijah Impey's defence, as containing accusatorial matter, and matter criminatory to him, be himself the person to criminate others, and even a whole profession, without any cause. So far from having acted as a partizan, he had taken no part whatever in the business, nor should he, till he was enabled to judge what was proper to be done in it, by having heard both sides of the question.

Mr. Francis admitted, that he had formerly said, he would not give a judicial vote on the business; by that declaration he meant to abide; nor should he have taken the part he had done that day, had he not been forced to do so in his own defence.

Mr. Kenrick declared, that when sir Elijah was at the bar on Monday, he had all the papers that he then referred to; but not choosing to keep papers of such importance in his possession, he had delivered them to sir Elijah when the House rose. With regard to the paper in question, containing matter accusatorial of Mr. Francis, he did not conceive that sir Elijah produced it with that view, but as a necessary part of his defence, inasmuch as it proved, that the council board concurred with him in regarding Nundcomar as a fit object for execution.

Mr. John Scott considered it as very improper that the original paper should be required of sir Elijah, but had no particular objection to the production of a copy of it, provided sir Elijah himself was inclined to produce it. If he did not choose to produce it, it then undoubtedly ought to have no weight with the House. It was incumbent, he thought, on Mr. Francis to deny the truth of what sir Elijah had ascribed to him, before he called for any papers which he conceived to be accusatory. One circumstance suggested itself to him in this business, as a matter of doubt, namely, whether the conduct of the council, as mentioned in sir Elijah's defence, was not equally deserving of impeachment with that of the judge.

Mr. Pitt said, that he by no means objected to a copy, if sir Elijah was willing to give it.

Mr. Fox said, that nothing could be, more absurd than the idea, that a person accused should be called on to deny the truth of a charge when he wished to have a paper produced that might throw light upon the subject.

Mr. Hardinge expressed the satisfaction with which he had listened to the

defence of sir Elijah Impey, and observed that it undoubtedly was optional with him, whether he would give the paper or not. For his own part, he was one of those wicked judges who would always suffer a person upon trial to state every fact and every assertion that he thought likely to aid his defence, without obliging him to exhibit or substantiate any one of them. He knew the nature of evidence too well to be ignorant that the whole lay upon the distinction between facts and assertions adduced and not adduced. When a prisoner, after the delivery of his defence, called witnesses to establish the facts, that part of the defence was to go to the jury; but all the rest a judge who knew his office would not, state to the jury in his charge. It seemed to him to be clearly admitted that the copy could not be insisted on; and it was generally agreed, that unless it was produced, it merited, no weight.

Mr. Burke rose for the sake of infor mation previous to his appearance at a place where such information would be very necessary. He wished to know how far papers could be argued from, which were not proved to be authentic, and what evidence would be admissible, and what not.

The Master of the Rolls answered, thaț in the place to which the right hon. gentleman alluded, the Judges would be ready to give their opinion upon such evidence as might be brought forward. Upon all disputed points the law would be pronounced from the Woolsack, and what was so pronounced must be considered as law.

Mr. Burke, said, that he must take the liberty to contend against the idea of the learned gentleman, that what by the Judges would be pronounced law must be considered as such. He had contended, and with success, against the unanimous opinion of the Judges, and should again contend against their determination, if he thought that determination wrong. The learned gentleman, he thought, held too high an opinion of the determination of the Judges; and though he might be eagerly looking to become one of that body, he sincerely hoped the learned gentleman might continue some time longer in his present probationary state, as it were, performing quarantine, for the benefit of his health and constitution, that when he became elevated to the desired situation, he might carry with him clean

t

and indisputable bills of health to the learned bench.

Mr. Adam insisted upon the right of requiring sir Elijah Impey to give in a copy of the paper alluded to. He referred to the practice of Westminsterhall and the Old Bailey, and adduced legal analogies in support of his opinion.

Major Scott said, he thought sir Elijah ought to produce any paper that he had read, and he firmly believed that he would not have the smallest objection to do so. For the last four hours, said the major, we have been talking without any difference of opinion. The hon. mover had very artfully, however, dwelt much upon a circumstance which was not of the smallest consequence, while he totally omitted that very material fact which had made such a strong impression upon every man who had read it-I mean the debate of the Council-board at Calcutta, when Nundcomar's letter was first produced, the day after the Rajah's death. Upon that occasion, the hon. gentleman solemnly declared the charges against the judges were unsupported, and he moved, that the paper itself should be burnt by the hands of the common hangman, as a libel. The world knows the part which the hop. gentleman had taken against sir Elijah, and they were struck with astonishment when they understood that he had given so different an opinion in August 1775. Whether the paper was a strong libel, or a weak one, is a matter of no moment, It is sufficient that the hon. gentleman thought it a libel upon the character of the judges, and, as such, that he recommended it to be burnt. To give the House complete information, I think the gentleman's minutes, as well as Nundcomar's letter, ought to be produced. And now, Mr. Speaker, as I am up, let me say one word in reply to the elegant panegyric which a right hon. gentleman has pronounced upon the character of his hon. friend. Not content with praising him in this House, he has joined with nineteen other gentlemen in circulating his panegyric to the world in a morning paper, where I read a few days ago a most envious letter addressed to Mr. Francis. See p. 1334.)-Before I join in applauding the integrity of the hon. gentleman, I require it to be proved by the only possible way in which his integrity can possibly be proved. Let him come fairly, boldly, and honestly forward, as lord Macartney has done; let him state [VOL. XXVI. ]

that he left England in debt a few years ago; that he was six years only in India; that his expenses at home and abroad were so much, and his fortune barely the difference between the amount of his expenses and the remainder of his salary. When the hon. gentleman shall have done this, I will join the Committee of impeachment with cheerfulness, in, pronouncing Mr. Francis to be one of the honestest men that ever came from Bengal; but until he shall submit to this only true test of his integrity, I shall pay no attention to the animated panegyrics of his friends.

Mr. Fox rose again to declare that he could not agree to the amendment, as it would be forming a 'dangerous precedent in the judicial proceedings of the House.

The question of the amendment was then put on which the House divided, Yeas, 107; Noes, 44.

Sir Elijah Impey' was then ordered to the bar, and being accordingly_come, accompanied by a gentleman, the Speaker informed him, that he was directed by the House to ask him whether he had any objection to produce a copy of the petition of the late Rajah Maha Nundcomar to the Supreme Council, presented by the late sir John Clavering, and which petition he had referred to in his answer to the charge of Nundcomar. Sir Elijah Impey answered, that he had no objection. The Speaker then, by desire of the House, asked him whether he had a copy with him? Sir Elijah answered, that he had not, but that he would on the morrow present a copy. The Speaker then-informed him, that he was desired by the House to proceed in his answer to the remaining charges.

Sir Elijah Impey now prefaced his address to the House, by complaining of having been attacked in some daily prints of that and the preceding day, respecting the answer he had given in to the first charge. Several printers, he said, had offered their services to him, but he never had paid any attention to them, being fully determined. in his own mind to give no answer to charges exhibited against him through those channels, and resolved to reserve himself to answer to that House. He now prayed the House to protect him from the attacks of the papers during the continuance of his defence. He knew not how to claim that protection, but he doubted not it was in the power of the House to grant it. The attacks he alluded to, were made in a pamphlet; in a morn[4 Y]