Now the counsel did not give a decided opinion against the prosecution, but upon the face of the case they expressed great doubts upon it; for, with such a strange, disorderly, imperfect, and confused case as was laid before them, they could not advise a prosecution; and in my opinion they went no further. And, indeed, upon that case that went before them, I, who am authorized by the Commons to prosecute, do admit that a great doubt might lie upon the most deciding mind, whether, under the circumstances there stated, a prosecution could be or ought to be pursued. I do not say which way my mind would have turned, upon that very imperfect state of the case; but I still allow so much to their very great ability, great minds, and sound judgment, that I am not sure, if it was _res integra_, I would not have rather hesitated myself (who am now here an accuser) what judgment to give.
It does happen that there are very singular circumstances in this business, to which your Lordships will advert; and you will consider what weight they ought to have upon your Lordships' minds. The person who is now the solicitor of the Company is a very respectable man in the profession,--Mr. Smith; he was at that time also the Company's solicitor, and he has since appeared in this cause as Mr. Hastings's solicitor. Now there is something particular in a man's being the solicitor to a party who was prosecuting another, and continuing afterwards in his office, and becoming the solicitor to the party prosecuted. It would be nearly as strange as if our solicitor were to be the solicitor of Mr. Hastings in this prosecution and trial before your Lordships. It is true, that we cannot make out, nor do we attempt to prove, that Mr. Smith was at that time actually Mr. Hastings's solicitor: all that we shall attempt to make out is, that the case he produced was just such a case as a solicitor anxious for the preservation of his client, and not anxious for the prosecution, would have made out.
My Lords, I have next to remark, that the opinion which the counsel gave in this case, namely, a very doubtful opinion, accompanied with strong censure of the manner in which the case was stated, was drawn from them by a case in which I charge that there were _misrepresentation_, _suppression_, and _falsification_.