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3rdly, Because we conceive that, by the subsisting law of the land, his Majesty's property is sufficiently secured from any undue disposition and alienation, and the resolution on that subject can bave no other effect, but to convey to the public injurious suspicions and unjust imputation on the character and intentions of His Royal Highness the Prince of Wales.
4thly, Because we are of opinion, that in order to maintain the proper dignity of the Crown, and preserve the due influence and respect which arises from the great offices of State, it is necessary that the person exercising the Royal authority, in the name and on the behalf of his Majesty, should be attended by those distinguished servants whose functions have been established for the purpose of adding weight and splendour to the regal office. We cannot agree to a division of the Royal power; to the creation of a fourth estate, unknown to the constitution of the country.
Frederic, Duke of York.
John Stuart, Lord Cardiff.
Thomas Bromley, Lord Montfort.
Aubrey Beauclerk, Duke of St. Alban's.
John Bligh, Lord Clifton (Earl of Darnley).
Martin Bladen Hawke, Lord Hawke. For all the reasons given in this protest, excepting those in the latter parts of the second reason, viz. beginning at these words, • But especially on,' and from thence to the end of the second reason.
Dunbar Hamilton, Earl of Selkirk.
JUNE 29, 1789. In the course of Warren Hastings' trial, a question arose as to the manner in which the Lords should put questions to the judges, and upon their answering these questions. The question was referred to a committee of the whole House, and the committee reported, 'that the House bas proceeded in a regular course.' This resolution produced the following protest.
Ist, Because by consulting the judges out of Court in the absence of the parties, and with shut doors, we have deviated from the most approved and almost uninterrupted practice of above a century and a half, and established a precedent, not only destructive of the justice due to the parties at our Bar, but materially injurious to the rights of the community at large, who, in cases of impeachments, are more peculiarly interested, that all proceedings of this High Court of Parliament should be open and exposed, like all other Courts of Justice, to public observation and comment, in order that no covert and private practices should defeat the great ends of public justice.
2ndly, Because from private opinions of the judges upon private statements, which the parties have neither heard nor seen, grounds of a decision will be obtained, which must inevitably affect the cause at issue at our Bar; this mode of proceeding seems to be a violation of the first principles of justice, inasmuch as we thereby force and confine the opinions of the judges to our private statement, and through the medium of our subsequent decision, we transfer the effect of those opinions to the parties, who have been deprived of the right and advantage of being heard by such private, though unintended transmutation of the point at issue.
3rdly, Because the prisoners who may hereafter have the misfortune to stand at our Bar, will be deprived of that consolation which the Lord High Steward Nottingham conveyed to the prisoner Lord Cornwallis; (videlicet) that the Lords have that tender regard of a prisoner at the Bar, that they will not suffer a case to be put up in his absence lest it should prejudice him by being wrong stated.
4thly, Because unusual mystery and secrecy in our judicial proceedings must tend, either to discredit the acquittal of the prisoner, or render the justice of his condemnation doubtful.
Henry Herbert, Lord Porchester.
May 16, 1791. The House of Commons had sat for seven years at the summer of 1790, and a dissolution necessarily took place. When the new Parliament met the question was raised in the Commons, as to whether the impeachment of Hastings was abated, Parliamentary History, vol. xxviii, p. 1018. On the 16th of May, 1791, the Lords, on the motion of Lord Porchester, settled the question in the form that a message be sent to the Commons to acquaint them that this House will proceed with the trial of Warren Hastings, Esq. See Parliamentary History, vol. xxix, p. 514. For the precedents see Lords' Journals, vol. xxxix, p. 125. The motion was carried by 66 to 18, and the following protest was inserted.
ist, Because I conceive the question to be complicated, containing different propositions as to the judgment, the process, and other points, which ought to have been divided and stated singly and separately.
endly, Because the subject being of a judicial nature of great magnitude, and which may ultimately affect, not only the life, liberty, and property of every Peer in this House, but also of every person in this Kingdom, I conceive it should not have been decided upon so hastily, but ought to have been solemnly argued point by point, with the assistance of the judges.
3rdly, Because this resolution, as I conceive, indirectly sets aside the law and practice of Parliament in all ages, relative to impeachments being abated by dissolution without one precedent to the contrary, except in the cases which happened after the order made on the 19th of March, 1678-9, which order was, as I conceive, unfounded in precedent, and made, as it should seem, on the spur of the occasion ; and which was reversed and annulled on the 22nd of May, 1685, in pursuance of which last order, consonant to the law and practice of Parliament, the Earl of Salisbury and the Earl of Peterborough were discharged on the 30th of October, 1690.
4thly, Because the order of the 22nd of May, 1685, stands now on the journals unrepealed; and consequently, as I conceive, is in force, and the acknowledged law of the land upon the subject.
5thly, Because this Court in its judicial character ought, as I conceive, to be governed by all other Courts of law, by precedents and by its own orders unrepealed, where any precedents are established, or orders made, more especially when such precedents are consonant to the law of the land, and to the law and usage of Parliament; that the subjects of this country may know with
precision and certainty the resolutions and laws by which in this High Court of Judicature, from which there is no appeal, their lives, liberties, and property, are to be decided and disposed of.
6thly, Because extending the duration of this impeachment from one Parliament to another, after a dissolution, even on the ground of the impeachment of the Earl of Oxford having been continued after a prorogation, by the resolution of this House of the 25th of May, 1717, is, as I conceive, to extend criminal law by inference and analogy, which is contrary to the known and settled rules of justice.
7thly, Because whatever merit or demerit this resolution may contain, I neither claim the one, nor am content that myself or my posterity should share the other.
Martin Bladen Hawke, Lord Hawke.
JUNE 8, 1791. On the 2oth of May, Mr. Fox introduced his Libel Bill in the form of a motion that the Grand Committee on Courts of Justice do sit on Tuesday next,' in which he was supported by Erskine. This project was withdrawn however, and Fox then moved for leave to bring in a Bill 'to remove doubts respecting the rights and functions of juries in criminal cases.' The Bill was read a first time on the 25th of May, committed on the 31st of May, and passed on the ist of June. The principle of the Bill was to give the jury the right to give a general verdict of guilty or not guilty on the whole issue, and was intended to be a declaratory statute, called for by the ruling of Lord Mansfield on Libel trials. The second reading was moved in the Lords by Lord Stanhope. The proposal was met by the Chancellor (Thurlow) moving that the Bill be read that day month, the lateness of the Session being alleged as the ground for delay. The motion was carried apparently without a division. Parliament was prorogued on the roth of June.
The following protests were entered.
ist, Because we hold it to be an unalienable right of the people that, in cases of libel (as well as in all criminal cases), the jury should decide upon the whole matter that may constitute the guilt or innocence of the person accused, and that in cases of libel, the jury ought not to be directed by the judge to pronounce the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged