treason. This preestablished fact,' he says, must give credence to subsequent declarations!' After an assertion so perfectly extravagant, it is surely necessary to weigh, with peculiar caution, every subsequent deduction which proceeds from the same quarter. Without stopping, at present, to consider the competency of a charge of treason against a sovereign prince, we shall run shortly over the objections which we think may be stated to the decision which has been pronounced and carried into execution. They may be arranged under the following heads. 1st, The gross irregularity of the whole proceedings. 2d, The defects of the evidence, and the inaccuracy of the reports of it, on which judgment was ultimately given. And, 3dly, The palpable injustice and impolicy of the measures which were finally adopted.

I. With regard to the irregularity and vices of the proceedings, we may observe, in the first place, that the inquiry was instituted under authority of a letter from Lord Wellesley, addressed to Lord Clive individually, without the conjunction, or intended conjunction, of his council; from whom it appears it was resolved to keep the matter secret. And the further orders for the investigation are accordingly issued in the same manner by Lord Clive at Madras, without the apparent knowledge of any person besides that of the two individuals who were ordered to conduct the inquiry. The act of Parliament for the constitution of our Indian governments, has no doubt given large powers to the governors of each of the settlements; and authorized them, in cases of a political nature, to do certain acts on their own discretion, independently of their Council. But then, these acts are all directed to be done in the presence of the Council, regularly assembled, and under certain prescribed forms, none of which have been observed in the present instance. The apology for all this is the necessity of secrecy. This, no doubt, may be sometimes desireable; but there is such a thing as being too secret; and if the consequences of an unwarranted privacy are, as in this case, to destroy the whole evidence of the circumstances under which the most important measures were adopted, it is evidently altogether impossible to listen to such an apology. The Council of Madras were unfit for their stations, if they were supposed cap. able of divulging any part of the proceedings.

In the second place, we must observe, the Nabob was never heard in his defence, nor were any witnesses examined in his behalf. Where a person is charged with the commission of a crime, it is agreeable to every rule of natural justice, that he should be furnished with a copy of the charge against him, and be heard in

his

his defence. But the Nabod died, it is said, before he could have been tried. In that case, his crimes should have died with him : and not been visited on the heads of his children and grandchildren to the third generation. But the fact is, the Nabob did not die until the government had been for two years in possession of the grounds of the accusations.

In the third place, the most important and indispensable of all the witnesses was not examined at all. Though the Nabob was dead, Khauder Newaz Khan was alive, and at Madras. Why was not this man examined? It was he who is said to have written the treasonable letters. If believed innocent, why was not he heard? If supposed guilty, why was not he condemned? He was certainly in one of these predicaments; and, in either case, his conduct should have been inquired into. The whole charge, indeed, rests ultimately on the evidence of this person, as he is said to have been the bearer of all the objectionable messages from the Nabob to the Vakeels. The other proofs go only to establish what it was that was so communicated; and, failing this, they all fall to the ground. If Khauder Newaz Khan denies that he was charged with such messages from the Nabob, there is an end of the question. A proof that wants the support of another, ought not to pass for one. It would be just as reasonable, and more expeditious, to suppose the proposition itself to be true which you wish to prove, as to suppose the existence of another, without which its truth can never be established.

The witness himself was of all others the most accessible. He was living within a few doors of Lord Clive's house at Madras; whilst the others were brought from an opposite and distant part of the country. There is no case that may not be made out this way, if only one half the proof is to be heard, and the other taken for granted. All the circumstances which are stated with regard to this man, seem to have made it more necessary to begin with his examination. He was not very opulent,' it seems, and desirous of rendering his instrumentality in establishing the friendship and cordiality (betwixt the Nabob and Tippoo) useful to himself, by obtaining a present from the Sultan. This, at least, is Goolam Ally's account of him; and it evidently suggests a key to the whole of the other evidence, perfectly consistent with the innocence of the Nabob. The only apology we have met with for this extraordinary neglect is, that as Khauder Newaz Khan, and the other guardians of the young Nabob, uniformly declared their total ignorance of any treasonable correspondence between their master and the Sultan, so it would have been in vain to have examined them as to the particulars of it; and that

the

the Nabob, at all events, could derive no benefit from their testimony, as they must have professed mere ignorance of what the other witnesses had sworn to. A more extraordinary plea, we believe, was never set up at the Old-Bailey. If there was in reality no treasonable correspondence, it certainly follows, that the guardians of the Nabob could not explain the particulars; but if a false story had been told by the other witnesses, would not their testimony be invalidated by the opposite statement of those who must have been privy to it, if it had been true? Nemo inveniet falsa. No man can, by anticipation, contradict the particulars of a fabricated accusation; but when he is interrogated after the first witnesses, he may depose to facts utterly subversive of their testimony, and make the innocence of the accused indubitable. According to any other view of the matter, the guilty alone can bring witnesses to their defence, and the inno cent must be convicted.

The same observation applies to a variety of other persons, who are evidently pointed out as necessary witnesses, from the very details of the accusation; and yet no one of them is brought forward or examined by the commissioners. This alone should set aside and discredit their report. Where an essential witness is withheld, the law will presume that he would have gone against the party who had it in his power to examine him, and will reject any inferior proof that is offered in such circumstances. These rules of evidence are the plain dictates of reason matured by experience, and have nothing arbitrary or technical in their conception. They are not just, because they are rules of law; but they are rules of law, because they are just. Their application, therefore, is universal; and their authority as indisputable at Madras, as at Westminster.

II. Such was the exterior of this proceeding, by which we confiscated the kingdom of the oldest and most faithful ally of cur Eastern empire; and by which we deposed a Sovereign Prince on a charge of high treason, with infinitely less ceremony or regularity of proceeding, than would be requisite in sentencing a black drummer to receive fifty lashes by authority of a regis - mental court-martial. We shall now look a little into the substantial justice of the decision.

One of the principal grounds for suspecting the Nabob's guilt, was an alleged discovery of a secret and treasonable intercourse between him and the Sultan of the Mahrattas, so long ago as the -year 1773; and which, it was said, there was reason to think he had

VOL. XI. NO. 22.

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Et fi quem nos interrogare nolumus, quæ caufa nobis tacendi fuerit, exiftimare debetis. (Cic. pro Fontego.)

had maintained ever after. The documents on which this charge was made, were the following.

Amongst the records of Seringapatam, there was found a letter from one of Hyder Ally's servants, then at Madras, (Mahomed Osman), written to that Prince in the year 1773, giving an account of an interview which he had had with the Nabob, and setting forth the friendly sentiments which he had, on that occasion, professed for his master.

This letter having been sent to Calcutta, and put into the hands of the Persian translator, this ingenious person immediately finds in it a rich mine of treason.

It discovers a fcene of political intrigue between him (Hyder) and the Nabob, particularly illustrative of the views of the latter, and fur. nishing a clue to his conduct in the tranfactions which took place between him and the British Government, not only at that period, but during the whole courfe of his connexion with the British power.

After a few other remarks of the same kind, he goes on to say, The circumftances, however, the moft important, which are difclofed by the documents adverted to, is the intimate connexion which he (the Nabob) appears to have formed with Hyder Ally, at a time when he was fuppofed, by the British Government, to entertain the moft inveterate animofities against him. It is remarkable (he continues) that the expreffions alluded to (in this letter), are, in fobstance, almost the fame that he the Nabob is ftated to have made ufe of to Tippoo's Vakeels in 1792-3. And, finally, (he adds) may not this preestablished difpofition of the Nabob, by a parity of argument, be fuppofed to have adhered to him to fo late a period as the war which terminated in 1792; and to afford additional credit to the charges exhibited against him, confiftently with every rule of reafoning upon the principles and paffions of the human mind? Thefe queries can only be answered in the affirmative."

Thus far the Perfian tranflator. The Governor General fends round the letter of Mahomed Ofman to Madras, as a curious document, tending to illuftrate the character and views of the Nabob. In its after progrefs, it is forwarded to England, and laid before the authorities here, as one of the proofs of a treafonable confpiracy. No argument or explanation being opposed to it, the Nabob is naturally condemned, and his country forfeited. The reader will now attend to the fequel. Two years afterwards, the Carnatic queftion is brought before Parliament; and papers being moved for, it now comes out, from a fearch amongst the old records of the Madras government, that the correspondence in question was carried on in the year 1773, betwixt Hyder and the old Nabob, with the full knowledge, and at the particular defire, of the Madras government, who confidered it for the intereft of the Carnatic that a good understanding.fhould fubfift betwixt these

two

two powers. (Vide papers laid before Parliament by an order of the House of Commons, 16th December 1802, vol. viii. p. 256, ,&c.)

Such has been the refult of the very limited and imperfect inquiry which has hitherto been made into the grounds of a sentence which was carried into effect against a fovereign and his country, before any opportunity of inveftigation had been afforded. The teftimony of the most important witneffes appears to have been withheld altogether, and the import of part of the written evi dence to have been totally misapprehended. Let us now fee in how far thefe defects have been compenfated by the accuracy of the statements furnished to the ultimate judges in this country, by thofe who directed and conducted the inquiry.

One of the very few direct charges against the Nabob, in the report of the commiffioners, is, that a treafonable difcourfe of Ally Rezza had been reported to him, and that he made no communication on the fubject to the government. An acknowledgement to this effect, they fay, was made by Ally Rezza on his examination. Our readers will probably be furprised to learn, that nothing of the kind appears in any part of his depofition. The matter ftands thus on the record. In the third paragraph of the report of the commiffioners it is ftated,

That Ally Rezza acknowledges the intention of his exhortation at the Jummah mofque in Madras, was, to have detached the Muffulmans from their allegiance to the Company; but that the Nabob Omdut ul Omrah was not prefent at this ceremony. The younger fons of the Nabob Wallajah did, however, attend the mofque on that occafion; and Ally Rezza underflood that the Cauzy had made a report on the fubject to the Nabob Wallajah himself.*

Now this, our readers will obferve, is a report upon evidence; and by referring to the evidence, it appears that it gives not the leaft authority for faying, that the Cauzy had made a report on the fubject to the Nabob. Throughout the whole of Ally Rez za's depofition, there is not one word that can bear fuch a meaning.

An error like this, we conceive, difcredits and vitiates the whole proceedings. The commiffioners were appointed to take the depofitions of witneffes, and to tranfmit them, with an account of their import, to the governor. In the report which accompa nies the evidence, and profeffes to be founded on it throughout, an affertion (in their minds) of the utmost importance, is imputed to one of the witneffes; but when his depofition is looked into, it is found to contain nothing in the leait like that affertion. Here, therefore, in the first place, is a charge made without the leaft appearance of evidence; and, in the fecond place, a grofs and

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very