THE QUEEN—BILL OF PAINS AND PENALTIES. (Hansard, 17 October 1820)

§ Mr. Tierney
said, that from some circumstances which had come to his knowledge, it was of great importance that the proceedings of this day, in the House of Lords, should be included in the motion.

Lord Castlereagh
thought it was sufficient, to move generally for a committee to inquire into, and report upon the present state of the proceedings.

§ Mr. Tierney
said, that any question not immediately connected with the innocence of her majesty, but connected with the manner in which the proceedings had originated, was a fit subject for the consideration of that House. He should move that it be an instruction to the committee to include the proceedings, of their lordships on this day.

Lord John Russell
rose, to present a petition from the inhabitants of Plymouth against the bill of Pains and Penalties against her majesty. It was signed by 2,000 inhabitants, the largest number of persons who had come forward upon a public question since the petitions against the property tax. The petitioners prayed that if the bill should ever come down to that House, the House would immediately throw it out. They were of opinion, that this proceeding, whether considered in a judicial or political point of view, was calculated to bring the administration of justice into contempt, and to endanger the security of the country. As this petition had been entrusted to him, he felt it his duty to present it. He had no hesitation in declaring that he entirely concurred in the sentiments of the petitioners; and that if ever the bill should come down from the other House, as he sincerely hoped it would not, he should be ready in his place to oppose it in every possible way. Without entering into the merits of the evidence which had been delivered before the House of Lords, he might be permitted to say, that the result of that evidence was not such as to make the people of England believe the Queen guilty. If the pretence for this bill were a tender regard for the morals of the country, be conceived that the whole ground of it taken away; if it had been entertained as a public measure, in order to prevent the effects of a bad example, it 751 was quite clear that if the people believed the Queen to be virtuous, the public morals could not be affected. Besides, let the House look at the mischievous consequences which the mere agitation of such a measure had produced. In addition to the evidence taken at the bar of the House of Lords, there had been propagated by the public press a thousand calumnies which could not be foreseen. Through that medium some members of the highest classes of society had been grossly calumniated, for no other reason than the giving evidence in her favour. He hoped, on the other hand, that the people would not lose any opportunity of expressing, in that House, their opinion against the unwarrantable and unprecedented conduct at present pursued and persevered in against her majesty.

§ Mr. Lockhart
hoped that the House would pardon him for a short time, if he ventured to deliver his sentiments on the subject of this petition. That opinion was in entire concurrence with the sentiments expressed in the petition itself. He could not but regard its prayer, as he looked upon the mode in which this bill of pains and penalties had been instituted, and the record of which was now before them on their Journals, as not only a most unconstitutional violation of the parliamentary laws of this kingdom, but as endangering the safety of the lower and middling ranks, by first of all striking, as was the practice in former ages, at the lives of those who were in the highest. When he called such a mode of instituting a proceeding, and such a proceeding itself, a violation of the laws, he meant to say a violation of the statute of Edward 3rd, which was the statute of treasons, and a violation of the express declaration of our Magna Charta itself, which had ordained in these words:—"Nemo capiatur aut imprisonetur, aut aliquo modo destruatur; nisi per legale judicium parium suorum, vel per legem terræ." Now, this very bill of pains and penalties—this unjustifiable species of encroachment—was that "aliquis modus destruendi," which our ancestors had so well pointed out and with so much providence endeavoured to avert—a method of procedure which was now in a civilized age revived—which was at this day brought forward, against the authority of all precedents, and the force of all laws. He meant to say, and he said it unhesitatingly, that by this measure, the statute of Edward 3rd was 752 most essentially violated; for, as the House had now a formal knowledge of the bill, he thought that was made to appear, and was charged as a misdemeanor, which, on the showing of the framers of the bill, was high treason. He ventured to affirm, that under the pretext of the commission of a misdemeanor only, the bill itself, however carefully it had been drawn, did in fact charge that which was high treason; or at least pointed out no particular crime in favour of which such a distinction could be taken, as to render it less than high treason. He had understood, that the general reason assigned for the opinion that the charges alleged against the Queen did not amount to high treason was this—that a queen consort was incapable of committing high treason with a foreigner in a foreign country. Now, what would the House think of this proposition, when it learned, that though the bill alleged the acts to have been committed with a foreigner, it did not allege them to have taken place in a foreign country? He was surprised that those learned gentlemen who had drawn this bill, and from whose habits more legal accuracy might have been expected—had not more carefully performed their task.—The hon. gentleman then proceeded to read the preamble and various clauses of the bill of Pains and Penalties, for the purpose of showing that there was that omission of which he had spoken; and further, that though the intercourse was charged to have been continued in various foreign places, no place was laid where it was charged to have been commenced. He contended, that the utmost precision and certainty and accuracy were required in the preambles, provisions, and enactments of all bills of this extra-judicial nature; and that whatever might be the difference of opinion entertained among men as to the character; or expediency of such bills, every one would readily agree, that it was not competent for parliament to assume that sort of jurisdiction which they had done in the present case, namely, to soften down a particular offence into one of another character, and then to proceed against it by a bill of pains and penalties, under a pretence of favour and kindness to the party against whom it might be instituted.—It was urged, that if they proceeded by impeachment in this instance, there was this danger—that they might decide that the crime was high treason; and then the 753 accusation must necessarily fall to the ground. Now, he maintained, that the very circumstance of this being a doubtful case as to whether it was one of high treason or not, took it entirely out of their cognizance, the law itself upon this point too, was in extreme doubt. It was doubtful notwithstanding all the authorities which might be cited, whether the queen-consort, or the companion of the eldest son of the king committing adultery was high treason or not, whether with a foreigner or otherwise. And first there was lord Coke's authority, he said, "If the queen-consort consents to him that commits the crime, she is equally guilty with him." And this he illustrated by authorities; but those authorities he (Mr. Lockhart) had looked into; one was the case of Anne Boleyn, as reported by a judge of the name of Spelman; and the other that of Catherine Howard, who was attainted. With respect to the first case, supposed to be reported by Spelman, who, by the way, was the judge who tried sir Thomas More, a circumstance not much in his favour, he had searched almost every library for it, and he believed that no such report existed. Burnet, indeed, mentioned his having seen the Common-place book of Spelman, containing the report of Anne Boleyn's case, with some of the leaves torn out. He believed, however, that it could not be Anne Boleyn's case, for he could prove to the House that she was not tried for adultery. First of all, the proceedings were suppressed and burnt, and the sentence only remained. But it-did appear, that before Anne Boleyn was executed, a divorce was obtained by Henry 8th, and sentence pronounced against her, declaring the marriage void ab initio, on account of a pre-contract. If this were so, it was utterly impossible that she could be guilty of high treason, because she was not the wife of the king. She never could have been tried for adultery; and as the statute was silent upon the subject, the case cited by lord Coke was no authority to prove that a queen-consort could be tried for high treason. This conclusion was confirmed also by the authority of parliament; for it appeared that the crime with which she was charged was not high treason, but conferring with divers persons to the danger of the Icing's person. The other case cited by lord Coke was that of queen Catherine, and he had. been followed by Hawkins, Hale, Mr. Justice Blackstone, and all the other 754 text writers, who concurred in declaring, that a queen-consort consenting to the crime of adultery was equally guilty with her accomplice. It was not true, however, that queen Catherine was attainted for the crime of adultery; and he could prove that it was not true by the best evidence in the world. He had been favoured by the president of Magdalen College, Oxford, with a book written by Mr. Thomas, clerk of the privy council to Henry 8th, and his son Edward 6th. It was there stated, that Mr. Thomas being in Italy, and making apologies to divers enemies of the king, who was of course much detested in Catholic countries, among other things he had occasion to answer the charges against him for cruelty to his wives. When he came to queen Catherine, what did he, who was an eye-witness of the proceeding, state the charge against her to be? He told them, that Catherine was attainted not for adultery, but for her dissolute life previous to her marriage. Was it possible for any gentleman to believe, after the authority of the manuscript to which he had alluded, and which was now in the Cotton library, that queen Catherine was attainted for adultery, when the great apologist of Henry 8th, stated distinctly what her real crime was? This very defence, too, was followed up by an act of parliament declaring it to be high treason, if any woman who had been deflowered should marry the king, or if any queen-consort should, by letter or token, solicit the commission of adultery. Lord Coke, therefore, was no authority to prove that a queen-consort was within the provisions of the statute, and there were most serious doubts whether a queen-consort could commit high treason. The very circumstance of the other House calling upon the Judges, and asking whether the offence amounted to high treason, was sufficient to show that great doubts existed upon the subject. This was a point to which he was extremely anxious to draw the attention of, the House. If it was doubtful to every reasonable mind, whether the offence amounted to high treason or not, the legal mode of resolving that doubt was not to resort to a bill of pains and penalties, professing, as a sort of salvo, to change the nature of the crime by diminishing the punishment. This course was quite contrary to the spirit of the law; for if an officer of justice were to change one punishment for another—if, for instance, he 755 were to substitute decapitation for burning, a punishment now happily abolished, lie would, by the law of the land, be guilty of murder. Where any doubt existed in cases of high treason, the law did not even trust the Judges with the explanation of that doubt. In all other cases the exposition of the law was confided to the Judges, but in cases of high treason the only legal and constitutional course was to refer all doubts and difficulties to the king in parliament. With respect to the express words used in the statute of Edward, "se l'on violast," he contended that those words were never meant to imply carnal cognition. In the Weavers' case, as reported by sir Matthew Hale, a doubt arose whether going about to destroy looms in general amounted to high treason. The question was referred to the Judges, but they delivered no opinion upon it. They declared, that it was doubtful whether the offence came within the statute, and they advised the facts to be specially found and submitted to the judgment of the king in parliament. This was the course recommended to the attorney-general, and the attorney-general declined proceeding any further.—He contended that her majesty ought to have been proceeded against by impeachment, and not by a bill of pains and penalties. If impeachment had been resorted to, the facts might have been separately found, and any doubts arising out of those facts as to the nature and amount of the offence, might have been referred to parliament. The bill of pains and penalties was a flagrant violation of Magna Charta, a proceeding fatal to the liberty and security of the country—a proceeding vexatiously protracted, when no doubt could remain of her majesty's innocence, like a wounded snake, "dragging its slow length along," unfit to live, and yet unwilling to die. He could not say that the husband alone, or the king's ministers alone, were guilty of vast laches in permitting the departure of the Queen from this realm, because he feared that many persons in that House, and himself, unfortunately, among them, had been their accomplices. He well remembered that the late Mr. Whitbread, who was extremely averse to her majesty's quitting this country, put a question to the noble lord opposite, whether it was meant that the Queen should go abroad or not? The answer given to that question was, that it was not meant to imprison her royal highness. If any 756 crime had been committed, and he was happy to think that no court of justice would say that crime had been committed, but even if there had, it would have been more for the dignity of the Crown, more for the security of the government, more for the public morals of the country, and much more expedient in every sense of the word, if it had been arranged in any other way than that which was so unfortunately, and fatally, and to no purpose adopted. He entertained the strongest doubt with regard to the bill itself, whether it was a proceeding to which parliament could consent, under any circumstances, without a departure from its duty: whether the only course in which they could have proceeded constitutionally, was not that of impeachment. But, however the House might feel as to that opinion, he hoped at all events that they would take some decisive step to get rid of the proceeding at once, to get out of it in some way, or in any way, no matter how, as a proceeding which every consideration of justice and expediency required that they should resist.