§ The order of the day being read for the further consideration and second reading of the bill, intituled "An Act to deprive her majesty Caroline Amelia Elizabeth of the title, prerogatives, rights, privileges, and exemptions of Queen Consort of this realm, and to dissolve the marriage between his majesty and the said Caroline Amelia Elizabeth;" and for hearing Counsel for and against the same; the Counsel were accordingly called in.
The Lord Chancellor.—The House is desirous to know from you of counsel for the Queen, what course you wish to pursue.
Mr. Brougham.—My lords; her majesty's counsel deemed it their duty, be fore answering the question of which they had notice yesterday, to wait upon her majesty last night, which they all did, with the exception of my learned friend, Mr. Williams, who concurs with us, how ever, in opinion, and who is gone upon professional duty to York We communicated to her majesty the decision which your lordship communicated to us at the bar yesterday; namely, that your lord ships would not permit us to be heard at present to comment upon the case as made out against the Queen. We have received her majesty's commands to inform your lord ships, that we shall be ready to proceed, as speedily as possible, to answer the case made out for the bill, and to tender that in defence of her majesty; but as this will require a few days preparation among the professional gentlemen entrusted with her majesty's defence in the different branches of the profession, we have, on her majesty's part, to beg your lordships to have the goodness to grant us that short delay. Her majesty's anxiety to proceed continues unabated: it is rather, as your lord ships may perhaps expect, increased, by some of the parts of the case against her; and, yielding to that very natural, and I 42 should humbly take leave to add, that praiseworthy feeling in her situation, the Queen, is desirous that the delay may be as short as possible. I rather exceed than fall short of the limits which her majesty wishes to put to that delay, when I ask your lordships to allow us to somewhere at or about Monday fortnight for that purpose.
§ The Counsel were directed to withdraw
The Earl of Liverpoolstated, that whenever it was determined to enter upon the defence, the time ought to be such, as, in the opinion of the parties who had to make it, afforded them an ample opportunity for every full and necessary preparation. That time, however, ought to be left solely and entirely to the discretion of the counsel of her majesty the Queen. No personal consideration whatever ought to influence their lordships in the progress of the cause. Whatever time her majesty thought necessary to prepare her defence ought to be allowed, without reference to any consideration for the time which their lordships were under the necessity of devoting to the consideration of the subject.
The Earl of Darnleyperfectly concurred in the propriety of what had fallen from the noble earl on the subject of awaiting the time required by her majesty's counsel to prepare her defence; but he understood the learned counsel, when he named Monday fortnight, to allude indefinitely to the time. Now, would it not be proper the learned counsel should state at once a definitive period? Let a day be fixed when all the preparations could be arranged, and let it be as distant as they pleased, rather than prematurely immediate. He agreed that no day ought to be named which the learned counsel did not deem perfectly convenient and suitable. Their lordships were bound not to attend to their own personal convenience; but still bethought a positive day ought to be fixed.
§ Earl Greyentirely agreed in what had fallen from the noble lords who preceded him, that they were bound primarily to consider the convenience of her majesty the Queen. He hoped, however, that it would not be deemed indecorous for him also to put in some minor claim in behalf of the convenience of their lordships. It was quite impossible that their lordships should not feel much inconvenience by an absence from their families at this period of the year. For himself, he attended at 43 the greatest possible personal inconvenience; but he could never, on that account, neglect his public duty. What he rose to suggest at present was, indeed, of a similar nature to that which had been so properly put by his noble friend; namely, that a definitive day should now be mentioned for entering upon the Queen's defence. If Monday fortnight were not likely to be positively sufficient, he trusted their lordships would be allowed a much more remote day. After so long an absence from their private business, and indeed also after such an interruption of the other public business of the country, the time now fixed upon ought to be such as would enable their lordships to see when they might ultimately have a prospect of attending to their own personal affairs, or else that opportunity should be now afforded them before they entered further into the present business. He hoped, therefore that Monday fortnight would be peremptorily fixed, or that a more distant day would be decided upon; as the interval proposed was too short to allow him and others, whose residence was at a great distance from town, any opportunity of attending to their private affairs in the country.
The Earl of Liverpoolconcurred fully with the noble earl; but their lordships must still bear in mind, that their proceeding in this stage of the business ought to be entirely governed by the convenience of her majesty and her counsel. The idea of personal convenience to themselves their lordships were bound to banish from their minds, though he was not insensible bow severely this duty must necessarily press upon their lordships. Independently of the convenience of the Queen, there was one person whose convenience he thought their lordships were bound to consult, namely, the noble and learned lord who sat on the woolsack. The situation of that distinguished person was such as to impose upon him public duties which could hardly be said to give him any repose. His duties did not, like those of other judges, give him leisure when his court was up; for he had, even in whatever momentary retirement he could snatch, to toil over the business of his official situation. If no personal convenience were sought after by her majesty's counsel, most certainly none ought to be looked for even by the noble and learned lord on the woolsack; but if any convenience could be looked for after that of 44 the Queen, he thought it ought to be that of his noble and Teamed friend, at his period of life, and considering his pressing and most harassing avocations.
The Lord Chancellorexpresssed his gratitude for the disposition manifested towards him, but he felt it to be his duty to state, that no personal consideration should be suffered to weigh with him for a moment in a matter of this sort. He should be ready at the earliest period that would suit their lordships, to discharge, to the best of his power, the most painful duty that devolved upon him on this occasion. He could not but feel uneasiness under any circumstances, when contemplating the business before their lordships, but that uneasiness would be augmented; if any delay in the proceedings were suffered to take place on his account.
The Earl of Lauderdalethought, that, on an occasion like the present, it was his duty to forget all considerations of his own private or personal convenience. He was confident their lordships participated in this feeling. He wished the counsel at the bar to state whether it would suit them that the period fixed for the re-assembling of the House should rather exceed than fall short of the time that had been named.
§ Earl Greysuggested, that her majesty's counsel should be called in and asked, whether they would be ready to proceed on Monday fortnight, without inconvenience or detriment to her majesty's interests.
§ The Earl of Harrowbyremarked, that the Queen's counsel had asked for time till at or about Monday fortnight. Their lordships ought to know precisely on what day her majesty's legal advisers would certainly be ready to proceed with the defence. From their having proposed that the trial should be resumed at or about Monday fortnight, he was led to think they considered it probable that they might be ready to proceed on that day, but not quite certain. In case they were not quite certain that they should be ready on that day, it might be for the convenience of the House that the period of their re-assembling should be fixed for a few days later, so that they might be absolutely certain of going on with the defence when they at length met. He did not say that it might be necessary to add a week to the delay called for, but perhaps it would be advisable to name some intermediate day.
§ Earl Greybegged to move their lordships, that her majesty's counsel should be called in, and asked if they could state that they should be prepared to proceed on Monday fortnight.
The Earl of Liverpoolthought they ought to take up the learned counsel's own words, and ask, in the first instance, what had been meant by "at or about Monday fortnight?" He recommended that this question should be forthwith put, as this phrase "at or about" rather appeared to mean more than less than a fortnight.
§ The Counsel were again called in.
The Lord Chancellor.—Mr. Brougham; you are understood to have used the words "at or about Monday fortnight." You are desired to explain what you mean by the words "at or about Monday fortnight."
Mr. Brougham.—If your lordships will give me leave, I will say this—We were very unwilling to take upon ourselves to fix, as it were, the precise day; wishing to yield ourselves, as far as we could consistently with our duty to our client, to the convenience of your lordships; which would be always the more a rule to us, the more your lordships desired to consult our convenience. But, my lords, I have no objection now to state to your lordships, that although her majesty is very anxious, from motives which I think will be duly appreciated by your lordships, to proceed at the very earliest day, I will take upon myself to say, as her law adviser, in which I believe I have the concurrence of all my learned friends near me, and of that most respectable person, Mr. Vizard, who is her solicitor, and whose information upon a question of this sort your lordships know is almost of more importance than that of any other person, considering the branch of the case which is entrusted to him—I will take upon myself, after such advice and information, humbly to submit to your lordships, that Monday three weeks, the second of October, would be that which would be suitable, if if should be found consistent with the convenience of your lordships.
§ Earl Greysaid, that the period mentioned by the counsel for the Queen was so very inconvenient to him, that he feared, from the nature of his private engagements, he should be under the necessity of applying to the House for leave of absence upon that occasion.
Lord Melvillecould not but think that the period of three weeks was as inconvenient a term as possibly could be. He really hoped that if the House were disposed to grant such delay, they would grant a period something longer.
§ Lord Erskine.—My lords, I hope that my noble friend who sits by me, will reconsider the application which he has just made to your lordships, because it would be most painful to me to resist it, which I should feel myself bound to do. I cannot state in his presence the value I put upon his attendance on all occasions in this House, and even if he were absent it would be Unnecessary, as it must be equally felt by every one of your lordships. I hope it will not be considered as any breach of that friendship I have so long felt for him, if I should divide the House, if any such motion should be made.
The Earl of Liverpoolconceived, that, after what had been stated by the counsel for her majesty the Queen, he could not think her anxiety ought to cede to the convenience of any noble lord.
§ The Earl of Darlingtonwas satisfied that nothing more inconvenient than the adjourning for the period of three weeks could have been proposed to the House; and, if their lordships at all consulted their own convenience, the motion would never be assented to. It would be recollected by their lordships, that when the counsel for her majesty was asked by the House, after the solicitor general had concluded, when he should be ready to proceed with his defence, he replied "forthwith." It was therefore most extraordinary that her majesty's counsel should have altered their course so suddenly.
The Earl of Liverpoolcould not agree with the noble lord who spoke last, in the view he took of the subject. He understood that the sole purpose for which the House this morning met, was to consider what delay the counsel for the Queen should require. When Mr. Brougham said, that he wished the House to meet again "at or about a fortnight," from the present time, he understood him to mean that that was the shortest possible time, on account of the Queen, that her defence could be proceeded in. But on consulting with her other legal advisers, and above all with her respectable solicitor, he was of opinion that three weeks was a period, at the expiration of which he was more certain of being able to pro- 47 ceed without interruption; as such, his lordship said, he should consider three weeks the period now fixed.
Lord Falmouthsaid, that residing as he did at a great distance from London, and having business which made it very material to him individually that he should be in the country at the period which had been last mentioned by the learned counsel for her majesty, he nevertheless entirely concurred with the sentiments expressed by the noble lord at the head of the Treasury, as to think that all private business should yield to the convenience and the claim of her majesty, as stated by her counsel at the bar. When he said this, however, he felt desirous of expressing the earnest hope he entertained, that the learned counsel would not ask for further time, after the period in question should expire, without a good and satisfactory reason. He did not mean to say that such a reason if might not arise, but he thought that it would be most vexatious to noble lords who, like himself, might reside at a distance from London, if after having, from their sense of paramount duty, so readily assented to the request of the learned counsel for a delay of three weeks, perhaps the most convenient one to them that could have been proposed, they should find the defence was not then to proceed. He therefore did hope it was to be thoroughly and clearly understood, that, without some satisfactory and conclusive reason, and one which could not now be foreseen, no further delay in proceeding upon the defence of her majesty was to be proposed.
Lord Rollesaid, that after counsel had at first mentioned a fortnight, he was rather surprised to hear them ask for three weeks.
The Duke of Atholsaid, that the question of the time of re-assembling lay entirely with her majesty's counsel. The House merely wanted to know the day to which they thought it necessary the defence should be postponed It was of no consequence where a noble lord resided, whether in Middlesex or Aberdeen; it would be his duty to attend on that day. At present an adjournment of three weeks was proposed; an interval which he hoped would enable noble lords to refresh themselves after the fatiguing business they had gone through. But after sitting so long as they had done, and enduring no common portion of trouble and fatigue in getting through one side of the case—he 48 thought the counsel should be required peremptorily to declare on what day certain they would be ready to proceed with the defence.
§ The Counsel were again called in.
The Lord Chancellor.—The House understand that you are assured you will be able to proceed on Tuesday three weeks.
Mr. BroughamWithout any doubt, my lords. I fixed the very latest date I dared. It gives me great uneasiness to fix this day, or to ask your lordships to fix this day, on more accounts than one. It is extremely inconvenient to all the learned counsel, for it is the first day of the sittings at Guildhall, but we cannot help it. It is we who have fixed it—not the Queen.
§ The Counsel were directed to withdraw.
§ The Lord Chancellor then put the question, and it was ordered, that the House do adjourn to Tuesday, the 3rd day of October next.
§ The Counsel were again called in.
The Lord Chancellor..—Before the counsel leave the bar, I wish to ask again, whether there is any objection, on the part of the counsel on either side, to the examining lord Frederick Montague, who is abroad, and who is named as a witness for her Majesty, in some manner by commission, that her majesty may have the benefit of that evidence without his lordship coming here; which I understand he is incapable of doing.
The Earl of Liverpool—I trust your lordships will seriously consider this, before it is determined that such a proceeding should take place in a case of a penal character. I should humbly submit to the learned counsel themselves, that it is very desirable that no such application should be pressed. I have no divided opinion upon it, as a matter of law; I wish to hear the opinion of others; but I cannot help saying I have a very strong feeling.
The Lord Chancellor.—I thought it my duty to mention to your lordships, that such an application had been made. It cannot be assented to, unless it is consented to on both sides—whether, with the consent of the counsel at the bar, it should be assented to is a matter for your lordships.—Mr. Attorney General, there are two witnesses who have been named to attend on the part of her majesty, lord 49 Frederick Montague and Mr. William Burrell It is stated to the House, that from the state of their health, it will be impossible for them personally to attend. Do you consent or object to an examination out of the House?
Mr. Attorney General.—My lords; I feel myself placed in a very delicate situation, in consequence of the application which your lordships have just made to me. I am directed by your lordships to produce the evidence at your lordships' bar. I therefore must confess that I hardly feel myself authorized to give a consent to this application. If it shall seem to your lordships meet, under the circumstances—if it shall appear to your lordships, that this is an application that ought to be granted—under those circumstances, I shall be bound to give it: but I apprehend it is rather for your lordships to consider, whether the circumstances are such as to induce you to take this extraordinary mode of proceeding, to examine witnesses by a commission abroad, and not to have their depositions vivá voce at your lordships' bar.
The Lord Chancellor.—It appears to me, my lords, that is all the answer the attorney-general can be expected to give. He is directed to produce the witnesses at your lordships bar; and it must be for your lordships to decide whether you will depart from the usual course.
§ The Counsel was directed to withdraw.
Lord Hollandthought no such commission should be granted, unless it could be justified by some analogy in the practice of the courts below in criminal cases. He doubted much whether any such analogy could be shown.
The Earl of Rosslynobserved, that the observations which had last fallen from the attorney-general, placed the question in quite a new situation. It appeared from what he had said, that he considered himself as no party in the case, but as the servant of the House, thus making their lordships the parties prosecutors to the bill. If the granting of the commission, therefore, were to be a question depending on the consent of the parties, the House would, in fact, be the parties, and be thus both parties and judges. He trusted the House would take care how they involved themselves in any such anomalous proceeding.
The Lord Chancellor.—mentioned to your lordships the other day, when I took notice of this matter, that there were in- 50 stances—which undoubtedly there are in civil cases—of a reference of this sort being had by consent of parties to examine witnesses by commission. With respect to criminal proceedings, my lords, I am not stating to your lordships that upon which I can much rely, when I state, that I know of no instance; because I have not been much concerned, either as counsel or judge, in such proceedings. There may possibly have been, in some instances, by consent of parties, such examinations, but if there have been, I believe them to have been extremely rare. Your lordships will recollect, that with a view of enabling you to do justice, as well as justice could be done, with reference to witnesses who were abroad, that by act of parliament this was directed in the case of the India Bill; but that, I apprehend, proceeded on a feeling of the necessity of the case; and there is one circumstance in a criminal proceeding, which undoubtedly is of great importance; and that is this, that as the court has a right, and is it the duty of the court, to inform itselt by the examination of witnesses who have been examined on the one part or the other, it is impossible that the Court can have the opportunity of doing justice so satisfactorily, unless the witnesses are present.
§ Lord Redesdalesaid, there was an act of parliament which authorised the taking of depositions by judges in the colonies, who were empowered to put questions to the deponent for the purpose of eliciting the truth; so absolutely necessary did it appear to the legislature, that the witness should be personally examined. If their lordships were to be guided by the principles of that act, it would be necessary to have a knowledge of the facts to be deposed to, in order that the questions might be prepared which the judge should put to the witness.
The application, so far as respected Mr. William Burrell, was withdrawn.—It was intimated by the lord chancellor, that their lordships would, in future, adjourn at four o'clock each day.
§ Ordered, That the further consideration and second reading of the said Bill be adjourned to Tuesday the 3rd of October.