§ MR. ROEBUCK, seeing his hon. and learned Friend the Attorney General in his place, would put to him the question of which he had given him notice. He wished to ask if he could inform the House whether it was the intention of Her Majesty's Government to proceed with the indictment found against Dr. Bernard for conspiracy?
THE ATTORNEY GENERALThe subject to which the inquiry of my hon. and learned Friend relates is one of great importance, and it involves an ulterior question, which, as it appears to me, may form a matter for the very serious consideration of the advisers of the Crown. The prosecution against Dr. Bernard was commenced by the late Government. [Sir G. GREY: For conspiracy.] The prosecution against Dr. Bernard was commenced by the late Government. [Sir G. GREY: For conspiracy.] The right hon. Gentleman will pardon me for a single moment. I was about to say that the prosecution was commenced under the late Government. In adopting that course I not only say it was a course which it was their duty to adopt, but I further say, that had they hesitated or shown any delay in adopting it they would have exposed themselves to just censure and animadversion. Certain circumstances had come to the knowledge of the advisers of the Crown in the time of the late Government which rendered it expedient, in their opinion, that an inquiry 1487 should take place, and that such facts as were then capable of proof in the due and ordinary course of law should be submitted to a magistrate of this metropolis. Counsel on the part of the Crown, under the direction of the late Government, attended before the magistrate, and in the course of the proceedings, as evidence accumulated upon evidence, the case assumed a form which led the learned counsel for the Crown, and the magistrate before whom the case had been brought, to entertain an opinion that it was the duty of that magistrate to commit the prisoner upon the capital charge of felony. At the time that commitment took place the case had come under the consideration of the present Government. The case for the prosecution was carried on in strict conformity with the laws and constitution of this country, and has now been brought to a conclusion. Dr. Bernard was put upon his trial under circumstances, to say the least, of strong suspicion that he had been a party to a great crime, attended by the most disastrous consequences, which was committed in a neighbouring country. He has undergone his trial, and he has been acquitted by a jury of Englishmen. It would not become me now to comment upon the verdict of acquittal; but since that verdict was pronounced it has been the duty of the law advisers of the Crown —at least I have felt it my duty as the law officer who conducted the prosecution against Dr. Bernard—to consider with great attention the remaining charge, with reference to which the proceedings at first commenced, and upon which, the grand jury having found a true bill, it would be the ordinary course that Dr. Bernard should be put upon his trial. In consequence of the similarity of the charge on which Dr. Bernard has been tried and acquitted and the charge on which he yet remains to be tried —the bill of indictment which has been found against him being a charge of conspiracy to assassinate the Emperor of the French—it has become my duty to consider, with most minute attention, the whole body of evidence adduced upon the late trial, and also what evidence it would be necessary to adduce, and what would be the substantial nature of the entire case if Dr. Bernard should be put upon his trial upon the indictment for conspiracy. Now, almost at the outset of this inquiry, and upon the first view of the case which I have felt it my duty thus maturely to consider, a maxim of our criminal law which 1488 has ever been held sacred by all who, in times past, have taken part in its administration in this country, forced itself upon my attention—"Nemo debet bis vexari pro eâdem causâ;'' and having very attentively and minutely considered the charge upon which Dr. Bernard has already been tried, and the charge upon which, in the ordinary course of law, he might yet be tried—namely, that of a conspiracy to assassinate the Emperor of the French— it appears to me, that although the two crimes as laid in the indictment may be different in name, yet the evidence in support of both is the same, and they are substantially identical. Under these circumstances, after very fully considering the whole of the evidence adduced upon the late trial, and the whole of the evidence which it is within the power of the Crown to bring forward upon any future trial, inasmuch as it appeared to me that the evidence would be the same, and that the question to be left to the jury by the Judges who tried the case would be the same, I have come to the conclusion that to proceed further with this prosecution, and again to put Dr. Bernard upon his trial, would be to violate the maxim to which I have adverted—a maxim which I, in common with all who are entrusted in any degree in the administration of the criminal law of this country, desire to hold sacred. I have, therefore to answer the question of my hon. and learned Friend by informing him and the House that the prosecution against Dr. Bernard for conspiracy will be no further proceeded with, and that he may, consequently, consider himself entirely discharged.
§ SIR RICHARD BETHELLI desire to put to my hon. and learned Friend a further question; but, first, the House will perhaps allow me to say one word—that although proceedings with a view to the indictment of Dr. Bernard for conspiracy were taken by the late Government, proceedings with the view of indicting him upon the charge of murder, or of being an accessory to the crime of murder, were not only contemplated by the late Government, but they had decided that there was no reasonable ground upon which any man could expect that such a charge could he maintained successfully. I beg to ask my hon. and learned Friend, it having been stated in the public papers that after the accession of my hon. and learned Friend (the Attorney General) to office, Mr. Bodkin, the junior counsel for the prosecution, was 1489 instructed to state that he no longer intended to proceed upon the charge of conspiracy, but upon the charge of murder, whether that course was taken under the opinion, and by the direction, of the then and present Attorney General.
THE ATTORNEY GENERALIn answering the question of my hon. and learned Friend, I may, in the first place, be permitted to doubt the accuracy of the statement that my learned Friend Mr. Bodkin—who originally attended before the magistrate, I presume, under the instruction of my hon. and learned Friend (Sir R. Bethell), who was then Attorney General, ever intimated that it was not his intention or that of the Crown to proceed with the charge for conspiracy against Dr. Bernard. I should be exceedingly surprised to hear that Mr. Bodkin, of whose discretion and accuracy in all respects I have had long and satisfactory experience, should have taken upon himself to declare the intention of the Government upon a point on which it was utterly impossible that he or any other person could possess any knowledge of their intention, inasmuch as the question to which such alleged declaration refers had never even been raised for the consideration of any of the law advisers of the Crown. It is quite true, as I have already stated in answer to the hon. and learned Member for Sheffield, that when this ease was originally brought under the consideration of a magistrate at Bow Street, the prosecution proceeded, and the evidence was dealt with, entirely as upon a charge for conspiracy. At a later period, and when the evidence which was ultimately brought forward in relation to the part taken by Dr. Bernard in certain transactions (which evidence possibly, and I will believe most probably, was unknown to Her Majesty's legal advisers when the first measures were adopted against Dr. Bernard, but which came out in the course of examination) became known, it was perfectly manifest to my learned friend, Mr. Bodkin, who appeared on the part of the Crown,—and I am sure I may say it also became manifest to the learned magistrate who committed Dr. Bernard for trial,—that those to whom had been assigned the province of carrying on the prosecution, and the magistrate to whom the case was submitted, would have ill discharged their duty if proceedings had not been taken, and if the prisoner had not been committed upon the capital charge. I have heard with indignant astonishment 1490 the observation—the comment—just made by my hon. and learned Friend upon the nature of that charge. Not only was no doubt entertained by the learned Gentleman who attended before the magistrate, instructed by my hon. and learned Friend himself, on the part of the Crown,—not only did no doubt occur to the magistrate who committed the prisoner upon the capital charge—but I must remind my hon. and learned Friend and the House, that upon the trial of Simon Bernard before the Lord Chief Justice of England, the Chief Baron of the Exchequer, and two other learned and eminent Judges of the land, the prisoner being defended with great zeal, ability, learning, and eloquence by my learned Friend Mr. James, with the assistance of other learned Gentlemen, so little was it thought that there was no substantial ground for the capital charge upon which the prisoner was indicted and placed upon his trial, that my learned Friend Mr. James, instead of immediately claiming an acquittal as a matter of right, thought it wise and expedient simply, and in very few words, to state to the learned Judges the nature of the objections which might be afterwards raised in point of law to the application of the statute in the case of the prisoner; and the learned Judges, whoso names I have mentioned, again, without one moment's hesitation, considered these questions of sufficient gravity, difficulty, and importance, at once to reserve them for the opinion of the fifteen Judges; and accordingly, without further discussion, without a suggestion of any other course on the part of the learned and able counsel for the prosecution, these points of law were reserved, and for six entire days before these learned Judges the trial proceeded upon the capital charge. All that my hon. and learned Friend can say or suggest on the subject of the criminal law, or of any other branch of the law of this country, is entitled to weight, attention, and respect; but whatever may be the opinions which he has formed upon this question, I venture to say that no law officer of the Crown, no adviser of Her Majesty's Government at all connected or interested with the administration of the law of this country, would have done his duty if, under the circumstances which existed, he had hesitated for one moment to put that individual upon his trial on the capital charge.
§ SIR RICHARD BETHELLWe desire to have a plain answer to a plain ques- 1491 tion. The question is simply this:—Was the proceeding by Mr. Bodkin, altering the charge from one of conspiracy to that of being accessory to murder, a proceeding taken under the direction of Her Majesty's present Attorney General?
THE ATTORNEY GENERALI have no other answer to return than that which I have already given. I add—not by way of answer, but from a feeling of respect towards this House—that for what was done either before the police magistrate, or at the Old Bailey, or elsewhere, from the hour when the present Government came into office, and from the time that I had the honour to become Her Majesty's Attorney General, I stand here personally responsible, and I shall be at all times, and upon every fitting occasion, ready to vindicate the line of conduct I have taken.
§ At a somewhat later period of the evening.
§ MR. SERJEANT KINGLAKE, who had a notice on the paper in the usual manner, rose to ask the Secretary of State for the Home Department whether the late prosecution of the Queen v. Simon Bernard, charging him as an accessory before the fact, and also as a principal to the murder of Nicholas Battie, was instituted in pursuance of advice given by the law officers of the Crown, to the effect that, assuming the alleged facts to be true, the offence charged was punishable as a felony under the existing law of the realm; and also, whether the Secretary of State for the Home Department will lay any opinion which may have been given by the law officers of the Crown relative to the said charge on the table of the House?
§ MR. WALPOLE, after observing that his hon. and learned Friend had put the question in a somewhat different form to that of which he had given notice, said, that any one standing in the position he had the honour to fill would agree with him that the effect of the advice given by the law officers of the Crown and the opinion given by those officers, were not a matter which it would be proper for him to communicate; for that advice and opinion the law officers of the Government were alone responsible. But as his hon. and learned Friend had put his question in a somewhat different form, he wished to inform him and the House, in answer to the question with reference to the proceedings in Dr. Bernard's case, not one was taken without the assistance and advice of his learned Friend the Attorney General, and 1492 he should be ashamed of himself, if in any matter of public prosecution, he should give any directions of any kind whatever without such assistance and advice. Perhaps the House would forgive him for making an addition to that statement, because it appeared from the way in which the question was put, that his hon. and learned Friend at least thought there was some holding back on the part of the Government in this matter. He (Mr. Walpole) assured the House there was none; and he also wished to assure them, in vindication of the course taken by his hon. and learned Friend the Attorney General, that before the present Government came into power, the late Government, acting no doubt under the advice of the law officers, and in his (Mr. Walpole's) opinion acting most properly, issued a notice of reward as against Allsop, not for misdemeanour, but for felony, which must have been proceeded with in precisely the same manner as that in which the present Government had deemed it expedient to proceed against Dr. Bernard. He was anxious that there should be no mistake in this matter, and he made these observations as he saw that the House was a little distrustful of the communication made. He hoped not; but perhaps he might be permitted to add, that two legal questions would have arisen under the Act of Parliament in the case of Dr. Bernard—one, whether Dr. Bernard was one of Her Majesty's subjects within the meaning of the Act; the other, whether a person, either Her Majesty's subject or not, could be tried for a murder committed abroad, either as principal or accessory to that murder. The only difference between the cases of Bernard and Allsop was that Allsop was a natural-born subject, and Bernard owed only temporary allegiance to the Queen, but was not a natural-born subject of Her Majesty. As they had failed in that conviction, the questions of law which it involved was untried; but, after the statement made by his hon. and learned Friend the Attorney General, the House must see that since the failure of that trial was a failure on the facts, it would be a most improper thing to proceed further on the trial for misdemeanour on the same evidence.