§ The Earl of Liverpool now moved the order of the day for the second reading of the bill intitled, "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."
The Duke of Leinsterrose, and said:—My Lords; I do not intend to intrude any observations of mine upon the attention of your lordships at present. But I think it my duty to take the speediest course of putting an end, if possible, to this unfortunate proceeding. I therefore move, that the order of the day for the second reading of the bill of Pains and Penalties against Her Majesty be rescinded.
§ Upon this motion, their lordships divided, and the numbers were:—Contents, 41: Not-Contents, 206; Majority, 165.
| List of the Minority. | |
| Duke of Leinster | Viscount Anson |
| Somerset | Lord Duncan |
| Bedford | Bolingbroke |
| Argyle | Downe |
| Hamilton | Torrington |
| St. Alban's | Hood |
| Marq. of Downshire | Kenyon |
| Earl of Essex | King |
| Darnley | Saye & Sele |
| Jersey | Gwydir |
| Albemarle | Clifden |
| Suffolk | Auckland |
| Besborough | Dundas |
| Stanhope | Dacre |
| Fortescue | Belhaven |
| Carnarvon | Sondes |
| Grosvenor | Ducie |
| Thanet | Holland |
| Cowper | Hawke |
| Ilchester | Foley. |
| Oxford |
§ The Earl of Liverpool then moved, that counsel be called in.
The Earl of Carnarvonrose to state his motives for the course he intended to take upon the present occasion. He thought it due to their lordships and the country, that he should fully enter into the reasons which induced him to oppose the present proceeding. He objected to it, because he felt that it was inconsistent with the public interest; and also because he felt it was inconsistent with their lordships honour, which he conceived would be tarnished if this bill were suffered to proceed one step farther. He felt such strong objections to a bill of this kind, that he was now ready to state, that he could hardly conceive any cause sufficiently forcible to induce him to vote for such a proceeding. But if any case existed in which he could bring his mind to support a bill of Pains and Penalties, it must be one of absolute necessity. Was there, he would ask, one of their lordships, or was there a man throughout the whole country, who conceived that the investigation of these charges, under all the circumstances, was called for by the necessity of the case? Did their lordships believe that the country would be threatened with danger, if those charges had never been instituted? For his own part, he conceived that they did not entertain such an opinion; but on the contrary, every individual who had maturely weighed the subject was, he had no doubt, impressed with the idea that danger was rather to be apprehended from the course they were pursuing. He could not conceive any benefit that could be derived from the further proceeding with this measure, but he could see many difficulties and dangers that were likely to arise from it. Bills of Pains and Penalties had all the effect of ex-post-facto laws; they were intended to punish those by an indirect method, who could not be convicted by due course of law; they were meant to supply defects of evidence; but he would ever contend, that an attempt so to supply a defect of evidence was opposed to every principle of public justice; if the principles of public justice, as laid down by our courts of law, were indeed well-founded. On that ground alone, if there were no other on which he could found his opposition, he would protest against the course which their lordships seemed inclined to pursue. The last instance of a bill of this nature, and the instance which was most 614 decidely relied on, was that of sir John Fenwick, in the reign of William the 3rd. Had he, however, existed at that period, he would have given his decided vote against the bill. The only ground for it was, that some of the witnesses had been withdrawn, and that therefore, there was a want of the necessary evidence to go before the public. But, even in that case, he thought their lordships should not have proceeded by a bill of Pains and Penalties to supply a defect of evidence. He could not admit the case of sir John Fenwick to be of such a nature that he ought to have been found guilty by an extraordinary process, when, by the usual course that would have been pursued in a court of justice, he must have been acquitted. That business, he found, had commenced in the House of Commons. It had created many discussions; and when the bill was brought in, there was on the motion for the second reading a majority of 92 members in favour of it; but when it passed, that majority had dwindled down to 33. The bill came regularly before the House of Lords; and so little did their lordships feel the expediency of passing it, that it was carried by only a majority of 7. Bishop Burnett attempted to argue, that the bill of Pains and Penalties was a constitutional and legal mode of proceeding, and the first case which the learned bishop adduced in support of his argument was a most extraordinary one. He stated, as a proof of the legality of the proceeding, that a man accused of having attempted to destroy the bishop of Rochester by infusing a quantity of poison into his food, was not only awarded by such a measure to be guilty, but was sentenced to be boiled alive.* This was the triumphant species of example by which the learned bishop had attempted to defend a proceeding which was contrary to every established doctrine of law. It might be stated, that in tumultuous times, when great danger was apprehended, this arbitrary proceeding might be resorted to, and justified on the ground of necessity. But where was the danger in the present case? Where was the necessity of a parliamentary instead of a judicial proceeding? And in the case of sir John Fenwick, which was so much relied on, what evil was likely to have been endured by the country, if the bill of Pains and
* New Parl. Hist. v. 5, p. 1154.615 Penalties had not been adopted? If the case now brought under the consideration of parliament had not been inquired into at all, what danger had the country a right to apprehend? The conduct—the votes, he would say, of the House of Commons—the conduct of ministers themselves, who were the accusers on this occasion—showed that, so far from any danger being apprehended from keeping this question back, they would willingly embrace any mode by which they could possibly get out of this scrape. Was it not, then, a case that violated all the principles of justice, when they were called on to make a law by which an individual who had not committed any "legal crime" might be found guilty? Was it not monstrous to ask their lordships to pass a law of this kind, in the absence of all ground of public danger? Looking to the case, under all these circumstances, the public had not—as they felt they had not—any decided interest in this proceeding. If the noble earl who brought the measure forward would rise in his place, and state that he apprehended any real danger to the succession to the Crown of these realms—if he would state to their lordships and the public some strong and paramount reasons for adopting such a system—he would pay the utmost attention to that declaration. But he believed there was not one of their lordships who imagined that any such ground could be stated. Their lordships must not forget the situation in which Her Majesty was placed at the period when the charges contained in this bill originated. Hers was not a common situation. Long prior to the period to which he alluded, in consequence of unfortunate circumstances—circumstances not unusual to human nature, and which alone could be accounted for by a reference to human infirmity, which sometimes disturbed the tranquillity of married life—for nearly twenty years before the circumstances which gave rise to this discussion, this illustrious personage had not only been estranged from the affections of her royal consort, but she had been shut from the court of the queen, and denied access to almost the whole of the royal family. She had been placed in a situation of so peculiar a description, that, if any other individual had been similarly situated, their lordships well knew that they would not suffer a bill of Divorce to be introduced to their House in consequence of any 616 fault that might have been committed under such circumstances. He would assert, that Her Majesty had been placed in a situation, in which no individual throughout the country, from the highest to the lowest, ought to have been placed. Even admitting the charge to be true (and this he did merely for the sake of argument, for of the charges themselves he knew nothing), admitting them to be correct to the full extent to which they were insinuated, not directly made—still he felt that, under the peculiar circumstances of this extraordinary case, it would have been better not to have made them public. It would have been well, he thought, if ministers had suffered the Alps and the Appenines, the boundaries of distant realms, and the wide extent of seas and oceans, to throw a thick veil over those events which they had so eagerly brought forward. What they had done tended only to disturb the public peace—to injure the feelings of the country—to disgust every individual in the empire—and to excite that irritation of mind which could not exist without endangering the safety of the state.—Under these circumstances, he thought that the whole of these proceedings were most objectionable—that they were calculated to divide and to distract the country. The bill was founded on a fictitious opinion, that the public had a deep interest in this matter; but, instead of having an interest in promoting, they had the strongest interest in repressing this proceeding. But, if their lordships thought contrary to his opinion, that this inquiry should be continued, he certainly would contend that the bill now before them was not the preferable mode of effecting that object. It appeared to him that they had no right to go into evidence on the allegations contained in the bill then before the House. The bill, instead of pointing out some clearly defined and specific acts of guilt, some proceeding of a criminal nature, commenced with a long article of accusation, not one word of which pointed at a tangible charge. It was gravely stated as a matter of offence, that a foreigner, who filled an humble situation, had been promoted! Was nothing of the kind ever known in this country? Were none honoured with promotion here but persons of high birth? Was England the country in which the conferring distinction on an individual of worth was to be brought forward as matter of criminal charge? Had no person si- 617 milarly situated been ever promoted here? Had not individuals, originally occupied in an humble manner in this country, sometimes possessed the confidence of men of high rank, who, with all their power and influence, had assisted in raising the fortunes of those individuals? If this were admitted (and constituted as that country was, it must be admitted) then he argued, that this point of charge was one on which they had no right to go into evidence. The only charge they had any right to consider was a sort of make-weight at the end of the bill, where an adulterous intercourse was spoken of, but not in distinct and definite terms. This if made clearly and distinctly, would be a charge of very considerable magnitude. But those who brought it forward seemed, by the way in which it was introduced, to have shrunk from the task. If it were said that the charge of adultery could not be proved, but that conduct little short of convicted adultery could be proved, he would then put it to the ministers of the church and those of the law who heard him, to say, if they ever knew any other grounds upon which a divorce had been allowed, than that of adultery proved in the very fact? But if even that could be proved, still, he conceived, there was no necessity for going into the investigation, which was wholly uncalled for. On the subject of Her Majesty's criminality he would offer no opinion, because he had not even a shadow of ground by which he might be enabled to decide. He, however, cherished the strong feeling which was prevalent in every part of the country, that this was a question the agitation of which could produce no public good. It was clear that the House of Commons participated in that feeling, since they had declared, that, whichever way it might ultimately be decided, the proceeding would be "injurious to the best interests of the empire." If they continued in this course they would excite and alarm the public feeling, without any sufficient pubic motive: and he could not suppose that any private motive could exist of so much weight as to justify so extraordinary a proceeding. These were the grounds on which he objected to this measure altogether—grounds which he would have previously stated, had circumstances permitted, and which now induced him to oppose the motion that counsel be called in.
§ Earl Greysaid, that during the whole course of his political life, he had never 618 experienced more pain than he felt in delivering his sentiments on this occasion. He was the more anxious to address their lordships in the present stage of the proceedings, because he wished to state the reasons which had induced him to vote against his noble friend (the duke of Leinster), on a question that had been recently decided; and he was extremely glad that the noble lord who had just sat down had given him an opportunity to explain the motives which had led him so to vote. He agreed in all the objections the noble lord had urged against the general principle on which bills of pains and penalties were founded. But the question which had just been decided was, in a manner, brought before them by surprise. Their lordships had been called on, without any argument being adduced, without any reason being stated, to show the grounds on which they ought to adopt the proposition, to rescind an order that had been acquiesced in after grave debate and serious deliberation. It was impossible for him, under these circumstances, in the fair performance of that duty which he owed to the House, to agree to a motion which would have the effect of making their lordships contradict their proceedings, and deny the propriety of their previous conduct, without any proper motive or any just reason being assigned. It was on this ground that he voted with the majority a few minutes before. With all the difficulties pressing on his mind which necessarily arose from the nature of such a measure, he could not concur in the opinion of his noble friend who had opened the debate, when he condemned altogether bills of this description. His noble friend described them as ex-post facto laws, contrary to the usual rules and principles of justice. But he must maintain this principle, supported on the ground of parliamentary law, and bottomed on the constitution of the country—that on all occasions, when a great state necessity, or a matter of great state expediency, existed, parliament were vested with extraordinary powers, and it became their duty to exercise these extraordinary powers in order to procure that remedy, commensurate with such state necessity or expediency, which no proceeding in a court of law could afford. Therefore, when a bill of pains and penalties was brought before the House, if any state necessity or expediency could be proved, he would not object to it; but if that necessity or expediency 619 were not clearly pointed out, then, he conceived, the reasoning of his noble friend was perfectly applicable to the case. And here he felt himself under considerable difficulty and embarrassment. His noble friend had asked what public advantage could be derived from the inquiry? He went further than that: he stated, not only that no advantage could be derived from it, but that it was likely to produce great public mischief. If their lordships now stood in a different situation—if no measure had been yet proposed to them—if he had been a confidential adviser of the Crown, and consulted as to the expediency or policy of introducing such a bill;—in that case, all his noble friend had stated would have had great weight, and must have been considered as matter of deep importance. He certainly felt the force of the personal application which his noble friend had made to ministers, when he stated that they were willing to give to the Queen a great and splendid establishment, that they were ready to direct our ministers abroad to treat her with proper respect, and to cause her to be acknowledged Queen of these realms by foreign powers [Here the earl of Liverpool indicated his dissent]. The noble earl seemed to dissent from the accuracy of this statement, and he undoubtedly did not wish to infer any thing from the proceedings but what was perfectly correct. He believed the sum of the offer made to her Majesty was, that provided she consented not to come to this country she should be allowed 50,000l. a-year; directions should be given to our ministers to treat her with proper respect; and that her legal title as Queen should be recognized in any country abroad where she might choose to reside. Now, when so much was admitted, he could not understand how the single circumstance of her majesty being brought to England could operate so strongly on the minds of ministers, as to make them think it necessary to introduce this bill of Pains and Penalties. This was the great objection of his noble friend. Why had they determined to resort to such a measure, when they offered, on the terms stated, to relinquish all proceedings? This, however, was a circumstance that only concerned them. The House had to consider what they were to do in the situation in which they now stood. What was that situation? Charges against the queen of England were brought before their lord- 620 ships, which, if they were proved, must degrade her for ever. With respect to her guilt or innocence, he would give no opinion whatsoever. He came to do his duty as a peer of parliament, without any earthly consideration to warp or bias his mind. He neither came to support the cause of the king nor of the queen, but he entered that House with a strong desire and firm determination to do justice. He had before him the queen of England charged with crimes which, if they could be proved, rendered her unfit and unworthy to be placed in that high situation. When his noble friend asked, what state necessity existed for this measure? he would answer, this was the necessity—he was placed with this alternative before him, either to proceed in some way or other to investigate the charges brought against the queen, or else to consent to raise her to the high dignity, and rank, and pre-eminence, which belonged to that exalted situation, while this imputation rested on her character unheard and unanswered. When he was placed in that alternative—by whom he knew not, he meant not to blame any person—the course appeared to him to be plain and open. All that his noble friend had said would have been grave matter of consideration before the proceeding had arrived at this stage; but the subject being brought substantively before them, he would not be guilty of such a pusillanimous abandonment of his duty as to shrink from the hearing of this charge. The question then was, whether the best mode of proceeding was by a bill like the present—a bill of pains and penalties? He had formerly stated the general objections he entertained against such a measure; but consistently with the doctrine he had just laid down, he must admit, that, if no course of proceeding known to the law presented itself, the present was a proper course to be adopted. Before, however, he would agree to that proceeding, he must be fully satisfied that no other could be pointed out. They were told, that the imputed offence could not be prosecuted in any other way, because, under the peculiar circumstances of the case, it did not amount to the crime of high treason. He certainly felt all the difficulties he ought to feel in expressing any doubt or hesitation with respect to a question on which so learned an individual as the noble lord on the woolsack had pronounced almost a decided opinion. If he under- 621 stood the learned lord rightly, his objection to proceeding judicially against the queen was twofold. In the first place, he doubted the received construction of the statute of Edward 3rd; and secondly, he argued, that even if this received construction were the true one, which supposed that the clause relative to the violation of the queen made it high treason on her part, if she consented, as well as on that of the individual who committed the act—that still the alleged adultery being committed abroad, by a person who owed no allegiance to the Crown of England, that circumstance exempted the queen from the operation of the statute. Now, with respect to the first of these points, the learned lord himself had stated, that during the course of a long professional life, the early part devoted to the study, the latter to the administration of the law, with all his deep application, with all his acuteness of mind, with those habits of reflection which prevented him from deciding suddenly on any question, having found all the law-writers agreed on the truth of this construction, it never till the present moment entered his thought to entertain any doubt on its validity. He was sure the learned lord would not attempt to raise a doubt that he did not conscientiously and honestly feel; but he must say that a doubt which had not arisen until the particular pressure of the moment called it forth was not entitled to the same degree of weight and credit, as would be due to that which was produced by mature reflection; and as the learned lord did nothing more than doubt, he conceived they ought to satisfy themselves, before they proceeded further with this important business, whether the construction of the law to which he had adverted was a sound construction or not. Every writer on this question that he had been able to consult, and he believed every writer without exception, held this construction to be good. Lord Coke declared, that the crime was equal in the man and the woman. Sir M. Hale, sir John Hawkins, and Mr. Justice Black-stone, were all, without doubt or exception, of the same opinion. The learned lord had, however, started doubts on this point; and therefore they ought to be put in possession of the opinions of the judges of the land, who had been very properly summoned to attend their lordships on this occasion. He would put it to them in the first place, whether 622 under the statute of Edward 3rd, the crime of adultery, with which the queen was charged, could be considered as high treason? And here he must observe, that, to satisfy him of the truth of the accusation, it would be necessary to produce the clearest, the most positive, the most overwhelming and irresistible evidence of the act of adultery. No general statements, no levity of conduct, which, whatever they might think of it in private, could not justify a judicial proceeding in that House, would be sufficient to convince him.—The second point on which he wished to have the opinion of the Judges was, that on which the learned lord had stated his sentiments more decidedly. He held, that an individual being a foreigner, and owing no allegiance to the Crown of this realm, he could not be considered as committing treason; and consequently, that the queen was exempted from the penalties of the statute of Edward. In cases of felony he was aware, that, generally, the accessories could not be proceeded against unless it was in common with the principal, or after his conviction. Accessories must be either before or after the fact: they must either counsel, aid, or assist, in the execution of a certain purpose, or, after its completion, comfort and protect those by whom it had been effected. Now, what he wished to know was, whether, if this were a simple felony, the queen would be considered an accessory or a principal. It appeared to him, on every principle of law, that she must be viewed in the latter capacity, if it were a case of simple felony. There were principals in the first and second degree. Those of the latter class were persons present at, and aiding in, the commission of any particular crime. Such individuals might be proceeded against, not as accessories before or after the fact, but as principals in the second degree, and might be arraigned and proceeded against in the absence of the chief offender. Thus, if an individual incited another to administer poison, he would be prosecuted as a principal, and not as an accessory. He stated this, not as analogous to the present proceeding but to show, that a person, who, under general circumstances, would only be considered an accessory, might, in particular cases, be selected as a principal. Having laid down this doctrine, he would suppose a person to have, by false information, enticed the wife of a sovereign 623 to a place, for the purpose of giving an opportunity for the violation of her person by another. The individual so misleading her would, he conceived, be an accessory before the fact; but suppose the crime of a forcible violation of her person to have been perpetrated by a foreigner abroad, and supposing that an Englishman assisted in that crime, by holding her while it was committed, would not that individual stand in the situation of a principal Where the act was voluntary, both the man and woman were held to be equally guilty in the eye of the law. The woman must be aiding and assisting in the commission of the alleged crime; and in his opinion the circumstance of the offence being effected abroad, and with a foreigner, did not exempt her from the operation of the statute of Edward 3rd, but placed her in the situation of a principal in the second degree. As he felt a strong doubt on his mind on this point, he wished the following question to be also put to the judges:—Whether, if a foreigner, owing no allegiance to the Crown, in a foreign country, violates the wife of the king, or of his eldest son, and she consents to such violation, she thereby commits high treason within the meaning and the true construction of the statute 25th Edward 3rd? God forbid it should be supposed that he wished to call for that extent of punishment which the statute of Edward 3rd provided, and from which the mild spirit of the present age would shrink! But if the judges answered the question in the affirmative, they then ought to dismiss this bill; for the introduction of which no plea but that of necessity was advanced. They might then bring in another bill, which would be beneficial to all parties, by which the law of high treason, as it respected the punishment of adultery, should be amended, awarding to the commission of that crime the penalties of degradation and divorce. Such a law would give to the accused party the advantage of a distinct specification of the charge, the benefit of a list of the witnesses, and all those other immunities which the law so humanely provided in cases of high treason. If, on the other hand, the answer of the judges should be, that there was no known law by which, under all the circumstances, the offence could be prosecuted—if they were of opinion that the law of treason did not apply to this case, and that the whole course 624 of authorities on this subject had been in error—he would then be reduced to the alternative he had stated, and he must, however reluctantly, proceed with the present bill, and act judicially on the evidence brought before him, and which he was sure their lordships would look to most minutely. He said this, because he would not sanction or countenance any of those censures or attacks that had been made on the House of Peers. For though they might be mistaken in their proceedings—though he thought they were wrong in refusing some of the propositions that had been made to them, in not, for instance, granting a specification of those charges—still he believed in his conscience, that if the case proceeded, substantial justice would be done to all parties.
The Lord Chancellorfelt some anxiety to explain his notion of the law on this subject. The noble earl had stated his propositions with great clearness, but nothing the noble earl had offered had shaken the opinion he formerly expressed. He would now distinctly avow that he had adopted his reasoning on this subject from reasoning deduced from the text-writers, and he had always felt a very considerable doubt whether they were correct in pushing the doctrine of constructive treason to the extent they had done. The words of the statute of Edward were—"If any man shall violate the wife of our eldest son, he shall be deemed guilty of treason; and if she consent to that violation, she shall be deemed guilty of treason also." Before he proceeded farther he wished to say, that the duty he was called on to perform was more painful to him than any ever imposed on him in the course of his life; but, when called on to give his opinion on a point of law, he would do so, however painful the task might be. The statute said—if the wife consented to the adultery, it would be, on her part, high treason; and then came the question, whether, under any possible exposition of the words of the act, it could be said that a man who violated the wife of the king's eldest son committed no crime, but that the female did? Yet this position must be maintained, if the noble earl's construction of the law were correct; because a foreigner, owing no allegiance to the Crown of this realm, did not, by the act of adultery, commit an offence against the state. To constitute criminality in the woman, it was necessary that the man, who was the 625 principal agent, should also be criminal. It was quite impossible that the person giving consent to an act which was not in itself treasonable could be considered guilty of treason. It could not surely be said, that a foreigner, in violating the wife of the king's eldest son, in a foreign country, came within the law of Edward 3. The noble earl said, if an Englishman assisted a foreigner in the commission of this crime, he would be guilty of treason. He denied this doctrine. He might, indeed, be guilty of scandalous misconduct, and a gross breach of morality; but if the principal were not guilty of treason, it was impossible that those assisting in the commission of the offence could, in the eye of the law, be held accountable for that crime.
The Earl of Liverpoolsaid, that nothing could be more fair or candid, than the whole statement of the noble earl. Although he differed from him on particular points, he felt not the slightest objection to any one of the general principles he had laid down. Every party concerned in this business would have full and ample justice done to them—a sentiment which he thought most properly introduced by the noble earl in the course of his speech. He hoped, if this question was brought to their lordships' bar in the manner now intended, that every peer in the House would consider it as a judicial proceeding, and treat it in that light alone. On other points a political bias might sometimes influence the decisions of individuals; but the present was a question on which no political bias should be suffered to influence the mind of any man. No individual, whether privately or politically connected with him, would hurt his feelings if he voted against him on this occasion. In doing so, that individual would only discharge his duty as a peer and a man, by pursuing the course his conscience pointed out to him. The objections made by the noble earl (Carnarvon) appeared to him extremely ill-timed. The proper period for offering them would have been before the adjournment of their lordships, and previously to their having fixed the second reading of the bill for the 17th of August; because, if it were thought necessary to get rid of this measure altogether, that necessity should have been stated at the earliest possible period. The present was not a time to review the conduct of his majesty's government. This important question he would, how- 626 ever, have no difficulty in explaining, and vindicating his conduct and that of his colleagues, when the subject came fairly before the House. The question now was, what was best to be done in this stage of the business? What was most consistent with the ends of substantial justice—with the preservation of public tranquillity—with the interests of the illustrious individual whose case was under consideration—and with the general safety and security of the country? It would be unfair if he did not state, that, from the beginning, he saw so many difficulties surrounding every proceeding which might be adopted on this subject, that he felt it would be most desirable to avoid its introduction if possible; and he thought it might have been avoided if her majesty had deemed it proper to remain abroad. He did not therefore feel ashamed, nor did he, in the slightest degree regret, that certain propositions had been made to her majesty for the purpose of effecting that object. But he did undoubtedly feel, when he was in possession of those charges, and when her majesty came to this country, that but one of two things could be done—either she must be allowed to enjoy all the rights, privileges, and prerogatives, and receive all the homage of queen, or that those charges must be brought forward against her, that they might be settled in one way or another. He had the concurrence of the noble earl in this opinion that, when the government were in possession of such charges, it was their duty to bring them to some issue, instead of allowing her majesty, whether the charges were well or ill founded, to enjoy her immunities and privileges as queen.
§ Earl Greysaid, in explanation, that his observation was, that it was originally a matter of consideration for his majesty's government, whether they would or would not bring those charges forward; but, having laid them before their lordships, it was impossible for them not to enter on the investigation.
The Earl of Liverpoolwas perfectly satisfied with the noble earl's explanation. His opinion was, that when ministers, from a sense of duty, determined to bring this question forward, no results could be produced satisfactory either to the illustrious individual, or in unison with the peace of the country, except by proceeding with the present inquiry. That being the view which ministers took of the subject, the bill of pains and penalties had 627 been laid on their lordships' table, and the second reading was fixed for that day, in order that counsel might be called in to prove on the one hand the matters contained in the preamble, and, on the other, to allow the illustrious personage to whom the bill related to rebut the allegations. No possible good could arise from postponing the measure. On the contrary, it would be productive of every possible inconvenience. If their lordships saw another course of proceeding which they conceived preferable, let them have recourse to it; but they ought to be quite sure, that the new course was really preferable, before they did away with a proceeding which promised substantial justice, and which was evidently the most speedy mode of bringing the question to an issue. He was not disposed to dispute with the noble earl the general view he had taken of bills of pains and penalties. He admitted that they were great evils, and only to be resorted to in cases of extreme necessity. If there had been any mode of trial pointed out, by which the present proceeding could have been avoided, he would willingly have adopted it, provided it was clearly proved to be a direct and preferable course. It was quite clear that this case could not be brought under the statute of Edward 3rd; and he had no hesitation in saying, that where a doubt existed with respect to the operation of that statute, it would have been wholly improper in the executive government to have proceeded under it, since, on a mere technical point, the whole of the proceedings might be set aside. If an indictment or an impeachment for high treason had been resorted to, and all the facts were not most clearly and minutely proved, the counsel for the defence would have made that objection; and if the judge decided that it was a good one, the country would feel all the inconvenience that must result from an abortive proceeding which had not failed from want of substantial evidence, nor from any defect with reference to the merits of the case, but merely in consequence of a technical objection. The present was, therefore, in his opinion, the fittest course of proceeding, for their lordships to adopt. They might, indeed, have proceeded by impeachment; but every day's reflection led him to think that the present course was the preferable one. Adultery was not a crime by the common law of the land; but if it were even proved, how 628 could the person accused be found guilty of high crimes and misdemeanors which would be charged in the articles of an impeachment, because she had committed that offence? He knew that there was some doubt or difficulty on this particular point; but the existence of such a doubt was a sufficient reason for taking a different course. Under an impeachment the queen would be tried for high crimes and misdemeanors, while the offence charged against her was adultery, which, in his opinion, would not come within the terms of such impeachment. It would be put to the judges, whether adultery, in that case, could be visited as a crime, if it were not to be high treason? Now, if they answered as he thought they would, that it was no crime unless treason, the proceeding would fall to the ground. He knew their lordships might come to a different decision. On Sacheverell's trial certain questions were put to the judges, as to the nature and character of particular papers. The judges in that case came to one decision, and their lordships to another; but he would ask their lordships, could they do so now, without exciting a degree of prejudice that would be fatal to all inquiry, and make a most unfavourable impression on the public mind? But the noble earl had himself allowed, that a special law must be devised to meet the peculiarities of this case. Then he would ask the noble earl, whether all the objections—at least the popular or inflammatory objections—that were raised against the present measure, would not also be levelled at the proceeding recommended by him?—Another point should also be considered. This measure was now in progress before them. They were now about to enter on a judicial investigation. Was there any thing in such a course contrary to the principles of justice, or to the sound dictates of law? Was it not better to go on with this measure, rather than alter their course when many of the objections to it had been removed? He denied that the present proceeding was entirety without precedent. It would undoubtedly bear with great severity on the illustrious personage in question: but a similar degree of severity was experienced in other cases. Instances occurred' where the wives of peers were brought before the House in the subject-matter of bills of divorce. They were deprived of their rights and dignities—they were degraded; and of course they felt the 629 degradation as severely as her majesty would feel hers, if the inquiry terminated unfavourably. This then, was not ex post facto law any more than the bills to which he had alluded. He knew there was considerable difference between a common divorce bill and that now before them. That, however, which they were now considering, pointed at two distinct circumstances. It looked towards an injury to the state as well as to an individual. This, however, did not militate against its propriety; because, if by a common divorce bill, they degraded one individual for the benefit of another, how much more necessary was it to pursue the same course when it was of importance to the morals and safety of the state? Notwithstanding this, he should not be ashamed to retrace his steps, if such a course could contribute to the advantage of the accused and the ends of public justice: but to such an argument he could not give his assent. If the questions proposed by the noble earl were intended solely to obtain the opinion of the judges on the point, he should not object to them; but if their object was, to effect a suspension of the proceedings, he should decidedly oppose them, considering that delay was calculated to produce great public injury.
The Marquis of Lansdownewished to state the reasons why he voted against the motion of the duke of Leinster. He could not go the length of some noble lords in that House, and of many individuals out of doors, who were of opinion that, under no circumstances, ought a bill of pains and penalties to be introduced to parliament. With the deepest sense of all the inconveniences and difficulties that were attached to such a proceeding, he yet felt that the House should not part with a power which, when judiciously applied, might effect the salvation of the state. There was but one ground upon which the House ought for a moment to have entertained the bill now before them; there was but one ground upon which he had been induced for a moment to allow that bill to remain upon the table: that ground was the allegation of those who, upon their responsibility, introduced the bill, that there were no other means of considering a crime which they, the promoters of the bill, declared to have been committed, and the punishment of which was essential to the safety of the country. Disapproving of all the preli- 630 minary proceedings, which had only tended to weaken the bill, and to create a prejudice in the public mind against it, still he had felt it due to persons taking upon themselves so heavy a responsibility, to listen to the causes by which (according to their statement) the House was driven to the extreme remedy adopted. Certainly, however, he had understood that their lordships were to pause for the opinion of the judges. Great inconvenience might arise, and would arise, either from a delay of the present proceedings, or from an alteration in their form; but much greater disadvantage would result from persevering in a course admitted upon all hands to be objectionable; and yet the noble lord thought it better to go on with this objectionable system, than to take the chance of waiting for a short time in the hope of arriving at a mode of proceeding more favourable to justice and to the character of the House, and far more congenial to the feelings of the country. It would scarcely be disputed by the learned lord upon the woolsack, or by any noble lord, that ground for doubt existed upon the point in question. He could attach no value to his own opinion; but he did not speak lightly nor unguardedly when he said, that among very high authorities—he should not err, perhaps, if he said among the highest authorities—there existed not only doubt, but an opinion directly contrary to that stated by the learned lord—an opinion agreeing with that of Mr. Justice Forster, that the impossibility, in such a case, of getting at the principal did not prevent the accessory from being reached, for the purposes of punishment. Certainly, if he did consent to go into the present inquiry, it would be with a determination to seize the very first occasion of putting it into a shape more reconcileable to the principles of the constitution, and of relieving the House and the public from the cruel necessity of recurring, upon such a question—a question involving the character of a queen, and, perhaps, the succession to a Crown-to principles pregnant with danger and with evil. Recollecting that this was the first occasion upon which the House had been attended by the judges, and that their lordships had now an opportunity of acquiring that information, without which it was impossible to decide upon the absolute necessity of the present mode of proceeding, he should certainly support the motion of his noble friend.
The Earl of Carnarvonsaid, that after I the vote which the House had originally come to, he could scarcely hope to offer any thing which would have the effect of changing their opinion; but, for himself, he would cheerfully adopt any course which would be likely to put an end to the present strange and most anomalous proceeding. It had been said, that this was not a time, after a charge was distinctly made, to alter the mode of proceeding; but he did not see that any more distinct charge was before the House now than had been presented in the commencement of the business; and it should be recollected, that, upon every part of the process of a bill, upon every succeeding stage, parliament had reserved to itself the privilege of consideration. There was one circumstance, however, upon which he must confess himself at a loss. His noble friend (earl Grey) had said, that he would not vote for a bill of pains and penalties, except upon a charge of direct adultery. Now, he would take upon himself to say, that no such thing as a direct charge of adultery was to be found from the beginning to the end of the present bill. His lordship concluded by declaring his readiness to wave his former suggestion, and to concur in any proposal which might put an end to the present course—a course which promised nothing but pure and unqualified evil.
§ Earl Grey, in explanation, conceived that, although the crime of adultery was not stated in so many words, yet it was most distinctly charged under the general terms of the bill.
§ The question for taking, forthwith, the opinion of the judges, was then put and carried. The judges accordingly retired; and, during their absence,
The Earl of Liverpoolproposed that the House should agree upon some plan which might at all events, after another day, supersede the necessity of calling Over the names of the members—a proceeding which occupied, unnecessarily, nearly three quarters of an hour. The mode suggested by his lordship, and upon which some desultory conversation took place, was that every peer, on coming into the House, should write his name, with the hour of his arrival, in a book kept in the anti-chamber for that purpose. Members to be deemed absent whose names should not appear. After a lapse of about twenty minutes the Judges returned to the House, when
The Lord Chief Justice Abbottdelivered their united opinion to the following effect:—"The judges have conferred together upon the question proposed to them by the House, Whether, if a foreigner, owing no allegiance to the Crown of England, violates, in a foreign country, the wife of the king's eldest son, and she consents thereto, she commits high treason, within the meaning of the act of the 25th of Edward 3rd? And we are of opinion that such an individual, under such circumstances, does not commit high treason, within the meaning of that act." This opinion, his lordship continued, was grounded upon the language of that statute of Edward 3rd, which declared it to be treason for any man to violate the wife of the king, the wife of the king's eldest son, &c.; the judges holding that, unless there were a man who could be legally charged with such a violation—the charge being that he did the act against his allegiance—it could not be said that treason had been committed. An act done by a foreigner, therefore, owing no allegiance to the Crown, could not amount to that crime.
§ It was then ordered, that the counsel be called in.
The Marquis of Lansdownesaid, that before the counsel were called in, there was one circumstance which he did not think should be passed over in silence. He understood that among the counsel who were to appear before them, there were no less than five members of the other House of Parliament. It appeared by the votes of the other House, that those learned gentlemen were permitted to attend at their lordships bar. He by no means wished to oppose that step. On the contrary, he had no doubt there were good and sufficient reasons for allowing those gentlemen to appear. There were certainly strong reasons why the queen should not be deprived of the legal assistance of particular persons, nor the Crown of the assistance of the attorney and solicitor-general; but still he thought the privilege was not to be allowed with-a protest against its being drawn into general practice, if any general practice could be founded on that anomalous proceeding. Because, as it was possible that measures of a judicial character might hereafter be taken in the other House of Parliament, he was anxious that, to the many necessary and unavoidable anomalies which were inseparable from this pro- 633 ceeding, this anomaly, at least, should not be added, that individuals who were members of the other House of Parliament should be allowed to act as advocates in this.
§ The motion, that counsel be called in, was then put and carried. Counsel were accordingly called in; and the King's Advocate, Mr. Attorney General, Mr. Solicitor General, Dr. Adams, and Mr. Parke appearing as counsel in support of the Bill; and Mr. Brougham Attorney General for the Queen, Mr. Denman Solicitor General for the Queen, Dr. Lushington, Mr. John Williams, Mr. Tindal, and Mr. Wilde appearing as Counsel on behalf of her Majesty,
The Duke of Hamiltonrequested to know by what authority the attorney-general stood in that place?—on whose part he appeared?—and by whom he had been instructed to appear?
The Attorney Generalsaid, he attended in consequence of an order of their lordships, which had been served upon him by the gentleman usher of the Black Rod—an order by which it was declared that the House would allow counsel to be heard before the second reading of the bill. In obedience to that order, he had considered it his duty either to appear personally, or to depute some other counsel to appear, in support of the bill, and to produce the evidence which was to be laid before the House.
The Duke of Hamiltonbegged to repeat his second question: by whom had the attorney-general been instructed to appear upon the present occasion? He wished to know from whom that gentleman's instructions had proceeded.
The Attorney General, as he had already taken the liberty to state to the House, had considered himself bound to appear by the order of their lordships, or to depute other counsel in his stead. In consequence of that order, by which he was required to produce witnesses in support of the bill, he had taken that which appeared to him to be the course immediately open—he had applied for information to those sources from which he thought it most likely to be obtained. He had understood that information upon the subject had been communicated to the secretary of state, and had accordingly applied to that department.
The Duke of Hamiltonsaid, he was certainly anxious to know who was the prosecutor upon the present occasion; 634 and if he understood the statement of the attorney-general, it appeared that the secretary of state was the prosecutor.
Lord Hollandsaid, that the attorney-general had stated, that he attended there, in consequence of the instructions which he had received from the House itself.
The Earl of Liverpoolsaid, he understood that the attorney-general appeared in consequence of an order received from the House. He had taken those steps which to him seemed best for the purpose of obtaining information. He had applied for information to the secretary of state, and with such information as had been obtained, he now appeared for the purpose of opening the case.
Mr. Broughamthen addressed their lordships to the following effect:—My lords, I have the honour to attend at your lordships bar on behalf of her majesty the queen. I am anxious not to incur the most distant risk of interrupting this court, or of interposing between what any of your lordships may deem fit to say; and I certainly wish to be stopped the moment I appear to be interrupting your lordships. My learned friend, the attorney-general, does not appear to know very exactly in what capacity he attends here. He has said, that a notification has been served upon him by order of your lordships, but in what capacity he attends at your lordships bar, does not very distinctly appear. Whatever uncertainty, however, may exist in the mind of his majesty's attorney-general, or however equivocal the capacity in which he attends here, I and my learned friends have the honour of attending at your lordships bar, distinctly and clearly on behalf of the Queen. The last time I had the honour of standing in this place and in this capacity, your lordships deemed it proper to delay hearing, till a subsequent stage of the proceedings, the arguments which I humbly ventured to tender to your lordships' consideration against the principle of the bill. By the order of your lordships, made on the 6th of July, her Majesty's counsel were informed, that in the observations which they were then permitted to make, they would be confined to the mode of proceeding upon the bill which had been read a first time, and to the time or times of proceeding thereupon. Your lordships will recollect, that I then ventured, not indeed to complain, but to express my extreme regret, that your lordships did not think fit to 635 allow me a greater latitude of observation, Your lordships, however, intimated, that all that latitude of observation should be reserved to a subsequent stage of the proceedings, and that upon the question for the second reading of the bill, I should be enabled to object to the principle of the bill altogether. I humbly conceive that this period has now arrived, and that, independently of any evidence which may be produced as to the facts—before any evidence is gone into as to the allegations of those facts—laying those allegations out of view for the present, or even admitting them to be true, for argument's sake, all of which, if it were necessary, I deny, as solemnly now as upon all former occasions, to have any colour or foundation whatever,—I still demur to the principle of the bill, upon grounds of which the force cannot be weakened or affected by any proof, that can be offered as to the truth of the facts. If I were called upon to show, that I am sanctioned by precedent in objecting to the principle of this bill—although I admit that the present proceeding has not the remotest resemblance to any which have preceded it,—I would remind your lordships of the case of the duke and duchess of Norfolk in 1692. In that case, it appears from your lordships' Journals, that proceedings took place of the following nature:—First, the duchess of Norfolk presented a petition to the House of Lords, not stating that a bill had been brought in, or that a copy of it had been served upon her, or even that she had received regular notice of the intention to bring in such a bill—but stating only that she had been informed that the duke of Norfolk had offered a bill, and humbly praying to be heard before the bill was received. The House having taken this petition into consideration, made an order on the 8th of Jan. 1692, that her grace should have notice that the bill had been offered, but not received, and that she should be heard by her counsel on the following Tuesday, as to what she had to object against receiving the said bill. Your lordships will observe, that counsel were to be heard even against receiving the bill. I have been told before, that such a thing was utterly impracticable, and I have been put down with something approaching to scorn, when I presumed to suggest, that in behalf of any party, however menaced, counsel could be beard against the first reading of a bill of pains and penalties. 636 I cannot now ask to be heard against the receiving of this bill, nor even against the first reading of the bill, for the decision of your lordships has precluded me from asking what you would have been warranted by precedent in conceding. But how do I now stand? The duchess of Norfolk, let it be recollected, was heard over and over again. She was heard against receiving the bill, she was heard against the first reading of the bill, and she was twice heard on the second reading upon the point of principle, and upon the point of evidence. The next cases to which I would refer, if I am not unnecessarily troubling your lordships, are that of Knight and Burton, in 1698, and lord Anglesea's case in 1700. The case of the duchess of Norfolk, and that of lord Anglesea, were both cases of divorce. I regret, and it is with unfeigned reluctance that I am compelled to make this observation in passing upon the report made by a committee of your lordships—I regret that that committee were not aware of these cases, and that they did not happen to turn to those pages of the Journal* which were so german to the matter of inquiry. Lists of witnesses, it will be found, were ordered to be furnished to the persons against whom the proceedings were instituted. I shall be told, perhaps, that the report of the committee refers only to bills of pains and penalties, and that these are cases of divorce. In two cases, however, to which this objection does not apply, and which were not inserted in the report, a list of witnesses was allowed. It is now too late to ask for my illustrious client, what I have shown I should have been sanctioned by precedent in asking, but I trust your lordships will allow me to pray to be heard in this stage of the proceeding against the principle of the bill.
§ Counsel being here ordered to withdraw, they, as is usual, retired a few paces, and then returned to the bar.
The Earl of Liverpoolsaid the regular course would be to call upon his majesty's attorney-general to open the case by producing evidence at their lordships' bar, and then to call upon the counsel on the part of Her Majesty, to answer the case by endeavouring to repel the evidence, and over and above all to object, if they thought fit, to the principle of the bill. This would be the regular course of proceeding; but if he understood the application of the counsel, it was to be heard 637 upon the principle of the bill, independently of the bill, or assuming the accusation to be made good. He could not help thinking that this was an inconvenient stage of the proceeding for such an application; but he should wish to take the sense of noble lords upon the question before he gave any decided opinion upon it.
The Lord Chancellorsaid, that unless some noble lord made a motion, the attorney-general must of course proceed. According to the modern course of proceeding, it was not usual to discuss the principle of the bill before the evidence was gone into. The reason of this was obvious, because if the facts were not proved, there would be no occasion to go into the principle at all.
Lord Kenyonsaid, that many noble lords thought as he did, that even if all the facts alleged against Her Majesty were proved, this bill ought not to pass, the House would have great reason to congratulate itself, if any arguments could be brought forward which would avert these painful disclosures. He repeated, that to whatever extent the allegations might be proved, the bill ought not to pass. Upon these grounds, he trusted their lordships would be ready to hear the arguments of the very able counsel who were now attending at their bar on behalf of Her Majesty, and he should move, therefore, that the counsel be allowed to proceed.
The Earl of Liverpoolconceived that their lordships had already decided this question. They had come to a resolution to refer a certain question to the judges, with a view, if any real difficulty presented itself, of pursuing some other course. They had heard the opinion of those learned persons, and, according to that opinion, the House might regularly proceed with the present bill. The whole of this question, therefore, resolved itself into one of convenience, and they had only to decide, whether the present time would be more or less convenient than after the evidence was gone through, for hearing arguments directed against the principle of the measure. The ordinary proceeding undoubtedly was, to hear the attorney-general open his case and adduce his evidence; after which it would be competent to counsel on the other side to urge any objection against the form or the substance of the measure.
The Marquis of Lansdowneagreed with 638 the noble earl, that the question immediately before them was one of convenience; and he also thought the noble earl had correctly described the usual course to be, that of allowing the attorney-general to open his case, and to reserve a subsequent opportunity to counsel on the other side of stating their general as well as particular objections. They had to consider, however, how far the ordinary rule applied to the present case; for it would evidently be a great convenience to prevent the disclosure of the facts, if this could be done consistently with the ends of justice. On this ground, he thought the learned counsel might fairly be allowed the option of addressing himself now, or at a future period, against the principle of the bill. He presumed that he would not have two opportunities, and if he availed himself of the immediate one, it was possible that their lordships might be spared the pain of going at all into the evidence, and might at the same time guard against an unnecessary loss of time.
§ The question was then carried without a division, and it was communicated to Her Majesty's counsel, that they were at liberty to urge their objections to the principle of the bill, either at that time, or after the evidence was concluded.
The Earl of Lauderdalewas still of opinion, that this resolution of their lordships' was open to many objections. Evidence might be adduced in the progress of the inquiry on which the Queen's counsel might have to found material arguments against the principle of the measure. They would, notwithstanding, by the terms of this resolution, be precluded from so doing, if they urged any objections of that nature at present. This appeared to him to be a complete deviation from the ordinary and established mode of proceeding.
§ Earl Greythought the course to be pursued might be fairly left to the discretion of the learned counsel.
The Earl of Lauderdaleobserved, that this was an instance of the court making a bargain with counsel as to the manner in which they should conduct their cause; and this, he believed, was without any precedent in a judicial inquiry.
§ The Lord Chancellor having called upon Her Majesty's counsel to make their option,
Mr. Broughamsaid:—I;have, in the first place, to apologise to your lord- 639 ships for not having immediately withdrawn from your lordships' bar in the manner which, as it seems, would have been most agreeable to some of your lordships. Many of your lordships, who are not much in the habit of witnessing judicial proceedings in this House, may not be aware that retiring from the bar is a mere formality, and that it is usual for counsel upon these occasions to retire half a step from the bar, and then to come forward. I mention this with a view of removing any impression, that I was intentionally guilty of the slightest disrespect to your lordships, and because I am aware that there are many even in this House who are ready to misconstrue every thing [Cries of "Order"]. If I understand the terms upon which I shall be permitted to address your lordships, against the principle of the bill, I am to be precluded hereafter from addressing any observations to your lordships, except as to the truth or falsehood of the allegations, which the evidence is meant to support. I shall certainly make my election without one moment's hesitation", and avail myself of the permission to be heard now even upon these terms. I do this with entire satisfaction to my own mind, because I know too well the justice which reigns in this place, not to be perfectly certain, that if, unexpectedly, any thing comes out in the course of the evidence, from which your lordships may find it necessary for the ends of substantial justice to revise your opinion, that opinion will not be considered irrevocable, and I shall not be precluded from again addressing your lords-hips against the principle of the bill.
My lords, my first objection to this bill is, that it is a private law made for a particular case, and for the punishment of a particular individual. Unhappily, laws of this nature are known in the jurisprudence of this, and of all other countries; but they have never been resorted to in any country, even in the worst of times, without a deep sense of their hateful nature, and of their utter repugnance to every principle of justice. From the earliest times of the Roman code, private laws were known by the name of privilegia; and they were divided by Civilians into two classes, one of which was favourable to the object of enactment, the other hostile to him, and distinguished by the name of Privilegium odiosum. Such was the stigma which jurisconsults, as well acquainted with the force of language as 640 with the value of the principles of justice, have affixed to this species of law, there by marking to after-times that they deemed it to be a measure of a hateful description, which nothing but absolute necessity could justify. These laws are to be found most frequently in the blackest pages of the Roman annals. They are invariably ex-post-facto laws. They first permit the deed to be done, and whether the party is to be deemed innocent or guilty is matter of subsequent inquiry; or rather, after permitting the deed to be done, without any notice or warning to the party accused, they enact that it shall be deemed and taken to be equity. I should be guilty of childish pedantry were I to occupy your lordships' time in reverting to the history of past ages, or in proving that the wisest and best of men deprecated, and even those who were not the best of men, had still the honour to shudder at this most unjustifiable mode of legislation. Suffice it to say, that the history of our own country, even in its worst periods, bears testimony to the detestation in which such measures were held. Without entering into minute details, I will just refer your lordships to the attainders of Mortimer and Arundel, in the reigns of Edward the 2nd and Edward the 3rd, which were measures introduced upon the pressure of a temporary emergency. I will pass over the reign of Henry the 8th that barbarous, detested, and justly detested, monarch; detestable for his unprincipled spoliations, for his heartless cruelty, and for his violation of the tenderest ties, and I will take my stand at a period of a better description, the reign of Charles the 1st and 2nd. Your lordships will probably call to mind the attainder of lord Strafford, the greatest disgrace, even in the worst of times, that ever sullied the purity of either House of Parliament. Your lordships will the rather call to mind the case of the earl of Strafford, because it is cited, and, for aught I know, approved by some of your lordships, in the report of the committee appointed to search for precedents in cases of impeachment. Impeachment, did I say? It would have been comparatively a case of justice had the earl of Strafford been impeached; it would then have been a quasi-judicial proceeding, in which, while the principles of justice were violated, the forms would at least have been half preserved. To show to your lordships the sense which our ancestors entertained of this foul act of ini- 641 quity and injustice, I will read the terms in which they recorded their opinion. No language of mine, or even of the most eloquent of those whom I have now the honour to address, can make so deep an impression upon the judgment as the admirable words of those predecessors of your lordships. After stating that, upon various pretexts, the turbulent party seeing no hopes to effect their unjust designs by any ordinary way of proceeding, they did at last resolve to attempt the destruction of that earl by an act of parliament made for the express purpose, they proceed to rescind, repeal, and reverse this said unjust act, and then to add these memorable words; "And to the end that right be done to the memory of the deceased earl of Strafford aforesaid, be it further enacted, that all records and proceedings of parliament relating to the said attainder, be wholly cancelled, and taken off the file, to the intent the same may not be visible in after ages, to be brought into example to the prejudice of any person whatsoever."* Of this description, substituting only for life, rank the most illustrious, and station the most exalted, privileges the most esteemed among men, and what is higher than all the rest, and dearer than each, every thing that is most valuable to character, feeling and honour, the bill which now lies upon the table of your lordships belongs strictly and even technically to the class which your lordships' predecessors have thus characterised. The reversal of lord Strafford's attainder manifests the manly sense which our ancestors entertained of that abominable measure. It may be regarded as a beacon to warn posterity, as a landmark for after ages, when future princes and future parliaments might be tempted to commit similar acts of injustice.
My lords, I have stated the opinion of your lordships' predecessors in the case of the earl of Strafford, but I will venture to say, that the attainders in the worst of former times, not even excepting any of the attainders of Henry the 8th's wives, were regular, consistent, judicial acts, compared with this. In the first place, nothing illegal is charged against Her Majesty. This I am bound to say, both in consequence of the decision of the judges, and still more upon the face of the whole proceedings, that there
* Howell's State Trials, v. 3, p. 1527.642 was no possibility of proceeding at law. If any act had been committed in violation of the law, I am bound to suppose that the extraordinary proceeding of a bill of Pains and Penalties would not have been resorted to. Nothing illegal has been done—nothing illegal is charged against Her Majesty. This is a. most material consideration, to which I humbly crave your lordships' attention. Although no law has been violated, it does not follow that no judicial proceeding could be resorted to; because impeachment is expressly and emphatically provided for the trial of matters not cognisable by the ordinary course of law. I do not mean to say that one class of proceeding is necessarily excluded in the renunciation of the other, but that crimes and misdemeanors which cannot be indicted in the courts of Westminster, are nevertheless cognizable before your lordships by impeachment. In lord Strafford's case, an impeachment had been resorted to, but it was apprehended that it might fail, and a bill of attainder was accordingly commenced in the Lords, while the impeachment was still pending. Why was not impeachment resorted to in the present case? Was the tattered and ragged evidence considered of so desperate a character, that no hope could be entertained of your lordships concurrence in a charge of impeachment? Why were your lordships distrusted? If the papers submitted to the other House of Parliament had been sent up here with a view to impeachment, if managers had been sent up from the other House, they would at any rate have allowed the proceeding to go on. See, my lords, how much we have been deprived of by not adopting this course. If an impeachment had been preferred, the charges would have been specially drawn up with a convenient certainty; we should have been furnished with a list of witnesses, and with all those advantages which belong to a real judicial proceeding. Though I am aware that your lordships have every disposition to conduct this proceeding in the spirit of justice, your lordships will forgive me when I say, that this is not a judicial proceeding. I am prepared to show, as well from the authority of cases decided in this House, as from the recent protests of virtuous minorities, that such acts as the present ought never to be resorted to unless from absolute necessity, either to avert some impending danger from the 643 state, or to prevent an absolute failure of justice. In a protest drawn up by lord chancellor Cowper, in 1723, it is said, that nothing short of such an evident necessity, when the preservation of the state plainly requires it, can justify such a proceeding as that now before us.* What, then, is the impelling or over-ruling necessity which can justify the present measure? Is the succession in danger? It has never been even alleged or surmised that the succession can by any possibility be endangered. If Her Majesty had been brought up for trial under the statute Ed. 3rd, though this had been decided to be impossible, and even admitting the allegations against her to be true for the sake of argument, yet when the long separation and the age of the parties were considered, no possible danger could be apprehended to the purity of the royal succession. The want of heirs may be one ground of danger to the succession; but I shall dismiss this without any observation, because no man pretends that the succession is endangered from this cause.It has been said, that the conduct imputed to Her Majesty has a tendency to degrade the Crown, and the nation with which she is connected, and that that connexion ought therefore to be broken off.—If these charges were brought forward against my client while Princess of Wales, can any one doubt that a divorce must have been sought for in the ordinary way—that all the usual forms upon such an occasion must have been gone through—that the party seeking the divorce must himself have presented a petition to your lordships—and, above all, that he must have come into court with clean hands? But the period when my client was Princess of Wales was allowed to go by. These accusations were delayed until she became queen; and thus care seemed to have been taken to deprive her of the rights of a private subject. I do not, however, say that these rights are gone, but others do, and this extraordinary course of proceeding is resorted to upon the alleged ground of state necessity. Upon this plea it is attempted to build an argument for excluding the Queen from those rights which any other female in the country would, on an analogous occasion, be allowed to exercise without dispute—which could not, under any pretence, be refused to my client, if
* New Parl. Hist., v. 8, p. 237.644 these proceedings had been instituted against her while she was Princess of Wales. But I contend that Her Majesty should be allowed the same privileges now as formerly, nunc pro tunc, as lawyers expressed it. Her Majesty roust indeed be, in common equity, entitled to the same rights and means of defence against the attack made in this bill, as if that attack had been made upon her while Princess of Wales.I now come to another part of the case, and I have to implore your lordships to pause while yet on the threshold of this extraordinary proceeding, and thus avert the consequences which are but too likely to follow if you determine to persevere. I will not now advert to any topic of recrimination. I should, indeed, most deeply deplore the painful necessity of doing so-upon any occasion. But the right of recrimination on the part of my client I could not exercise without directly violating the express injunctions of Her Majesty; nor is it my purpose to resort to that right unless driven to it by absolute and over-ruling necessity. In obedience to the same high command, I lay out of view, as equally inconsistent with my own feelings and those of my client, all arguments of another description in which I might be tempted to show that levity or indiscretion, criminality, or even criminal intercourse (for why should I be afraid to use the term?) cannot be held to be fatal to the character of the country, or to the honour and dignity of the illustrious family governing it. Here nothing is or has been proved; and is it because calumnies have been bruited and gossipped about—because such a jealous watch has been kept upon the Queen abroad, that we are to think they are to have more force than conduct less equivocal at home? That argument, and every thing resulting from it, I willingly postpone till the day of necessity; and in the same way I dismiss for the present all other questions respecting the conduct or connexions of any parties previous to marriage. These I say not one word about; they are dangerous and tremendous questions, the consequences of discussing which, at the present moment, I will no even trust myself to describe. At present I hold them to be needless to the safety of my client; but when the necessity arrives, an advocate knows but one duty, and, cost what it may, he must discharge it. Be the consequences what they 645 may, to any other persons, powers, principalities, dominions, or nations, an advocate is bound to do his duty; and I shall not fail to exert every means in my power to put a stop to the progress of this bill. But when I am told that a case of absolute necessity for the measure is made out, because the Queen has been guilty of improper familiarities (though I must look at the bill itself for the nice distinctions and refined expressions found in it) because she has thought fit to raise from low situations, officers who had served other people in menial capacities—because she had treated them with unbecoming intimacy—because she had advanced them, and bestowed marks of favour and distinction upon them—because she had created an order, and conducted herself in public and private with offensive familiarity—I cannot help asking, if these matters are so fatal to the honour and dignity of the Crown, nay, to the very peace of the nation (for what else can justify a bill like this?) why it is only resorted to at the present moment? The bill charges even a licentious, disgraceful, and adulterous intercourse; and therefore its supporters say it is absolutely necessary for the House to interpose. But I appeal to the House—for I am compelled to do so—whether this is not only untrue, but whether it is not known to be untrue. The bill itself speaks falsely, and I will tell your lordships why I say so. Are we arrived in this age at that highest pitch of polish in society when we shall be afraid to call things by their proper names, yet shall not scruple to punish by express laws an offence in the weaker sex which has been passed over in the stronger? Have we indeed reached that stage? I trust I shall not hear it said in this place: I hope that spirit of justice which I believe pervades this House at large will prevent it. But if not, I will appeal to the spirit of holiness, and to the heads of the church now ranged before me, whether adultery is to be considered only a crime in woman. I make the same confident appeal, and to the same quarter, when I ask, whether the Crown can be dishonoured, the fame of the country tarnished, and the morals of the people put in jeopardy, if an adulterous intercourse (which no one ventures to call adultery) shall be proved against a lady, when that which I venture to call adultery, because the exalted individual himself has confessed it to be so, 646 has actually been committed by a prince. It is with the utmost pain that I make this statement: it is wrung from me by hard compulsion; for there is not a man who acknowledges with a deeper sense of gratitude than I do, all the obligations which this country and Europe owes to that illustrious individual to whom it refers. I say it not—God forbid I should—to visit harshly upon him any of the failings of our common nature, much less to alter in one iota my recorded sense of the baseness of that conspiracy by which those failings were dragged before the public. I bring it forward because it is in truth an answer to this case. Why was no bill of degradation brought in in 1809, after the resolution of the House of Commons, and a full confession on behalf of the party accused, that he had been guilty of most immoral and unbecoming conduct? All this, I say, was well known to the authors of the present bill; for one of themselves penned the very words I have just read to the House. I ask, therefore, whether there is any possibility of replying to this objection, but in one short way—that the male members may do all they please, however exalted their station, however intimately connected with the Crown and with the highest interests of the state; that their conduct is perfectly a matter of indifference; but let the tooth of slander once fix upon a defenceless female of the family, who has been residing abroad, who has been allowed to expatriate herself, who has been assisted in removing from the country and even cherished to keep away from it; then, at that instant, the venom must distil, and she must be persecuted and prosecuted, under the canting, hypocritical, and disgusting pretence, that the character of the country and the honour of the Crown are at stake. Whether all of us, nearer to the object, do or do not see through the flimsy pretext, be assured that the good sense of the nation cannot be deceived, and that those at a distance will be both shocked and astonished. The people at large must look upon it as something too ridiculous to be examined: I myself can hardly use decorous terms in speaking of it, and they, in their homely language, will assert, that it is an attempt to accomplish one purpose under the colour of another. "Here is a man," they will say, "who wishes to get rid of his wife; he talks of the honour and safety of the country, yet its 647 dearest interests, its peace, its morals, and its happiness are to be sacrificed to gratify his desires." I would then exhort your lordships for sake of the reputation and judgment, as well as for sake of the peace and interest of this country, not to allow its grave, rational, enlightened, and moral character, as well as its internal tranquillity, to be sacrificed, in order to gratify the caprice or will of any individual, by the adoption of a measure of such an extraordinary purport as that before the House. By this measure it is proposed to enact a divorce in a peculiarly novel manner: for where, I ask, can an instance be found in the whole history of the law, where, after a legal marriage, which I assume that between their majesties to have been, it was ever attempted to dissolve that marriage, except upon actual proof of adultery, and upon the application of the husband or party aggrieved? It is provided, indeed, in your lordships' Standing Orders, that the husband who applies for a divorce shall personally attend the House, in order that he may be examined before the divorce is granted to show that there is no collusion, and that he himself stands rectus in curia. But the charge against my client, upon which a divorce is sought in the present bill, is not that of adultery, but "adulterous intercourse," which is an offence unknown to our law. In order to facilitate the dissolution of the sacred bond of marriage, it has been occasionally asserted, that it is not a religious, but a civil contract. To rebut this assertion, I could quote the opinions of some of the ablest divines, and soundest lawyers this country has ever known, or to whom the guardianship of our public morals and public institutions were ever committed. But I think it quite enough to read an extract from the decision of one of the greatest consistorial judges England ever possessed, I mean sir William Scott, who, in delivering his judgment on the case of Dalrymple v. Dalrymple, when some foolish objection was made against the sanctity of the marriage state, thus expressed himself:—"Marriage, in its origin, is a contract of natural law; it may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind; it is the parent, not the child, of civil society. In civil society, it becomes a civil contract, regulated and prescribed 648 by law, and endowed with civil consequences. In most civilized countries acting under a sense of the force of sacred obligations, it has had the sanction of religion superadded: it then becomes a religious as well as a natural and civil contract; for it is a great mistake to suppose that, because it is the one, therefore, it may not likewise be the other. Heaven itself is made a party to the contract, and the consent of the individuals pledged to each other, is ratified and consecrated by a vow to God." Is it possible, then, that your lordships can ever be persuaded to lay sacrilegious hands upon such a sacred compact—that you will attempt to put asunder those whom God hath united, or to cut that knot which has been tied by the combined laws of God and man! But how can your lordships be reconciled to such a deed in the extraordinary manner proposed by this bill, where the husband himself does not, as in every other instance of divorce, come forward to make any application for the measure? My learned friends on the other side, in order to get rid of the astringent arguments which they had reason to apprehend upon this point, on the part of my client, have, no doubt, told your lordships, that the king is no party to the present application. But my learned friend, the attorney-general, when certain questions were put to him, could hardly tell whence he came, how, by whom he was sent, or with whom the present prosecution originated, although he could say that the king was no party to the measure. Thus my learned friend warily and astutely endeavoured to ward off the argument which might arise from the personal interference of the king. He therefore said, that he was employed by the secretary of state, and that he appeared on the part of the public. He, however, received all his information upon the subject at the office of the secretary of state. It appears, indeed, that my learned friend did not go to any other place for intelligence, from an apprehension, perhaps, to use a common phrase, that he might go farther and fare worse. My learned friend has, it would seem, been employed by nobody, and thus constituted, he applies to your lordships for the adoption of this unprecedented and illegal proceeding; for the adoption, indeed, of a measure which is against all the analogies of law, and for the dissolution of a bond held sacred by the whole of our civil and ecclesiastical 649 jurisprudence.—But will your lordships allow me to ask, whether there is not enough of evidence before you and the country to show that the ground upon which this bill is alleged to be necessary, namely, a regard to the dignity of the Crown and the honour of the nation, is a mere pretence, that indeed it is quite an after-thought? In order to form a correct judgment of the views of men, it is certainly better to look to their conduct than their language. That is a good rule at any time, but especially at such times as the present, and with regard to such politicians as those with whom this bill appears to have originated. I should, indeed, rather look to an act of such persons for the illustration of their real views and principles, than to whole volumes of speeches or writings. It may be said, that I cannot precisely tell who are the authors of the present bill. But I must presume those to be the authors of the bill who laid before parliament the papers upon which it professes to be founded. Those who advised her majesty to go abroad against her own wishes are perfectly well known. At a period of life when Her Majesty was naturally anxious for the enjoyment of quietude, she was encouraged by those advisers to seek that quietude in a foreign land, where every prospect and promise of comfort and case were held out to her. Those advisers were opposed. Her Majesty was told by gentlemen who offered to stake their heads for the fact, that she would be quite safe if she remained in this country. I am stating that to which I myself put my hand. It was stated to Her Majesty that if she should go abroad, she would be surrounded by spies, and that some plot would be formed against her. These statements were however unavailing. Her Majesty did go abroad; and how far the advisers who sought to dissuade her from that proceeding, were correct calculators, her present situation could fully illustrate. In compliance with the opinion of those who contrived to counteract her faithful counsellors, she went to the Continent; and upon her return it was her fate to find her professed friends arrayed against her, upon the ground, forsooth, that in consequence of her return she ought to be prosecuted for alleged misconduct, in which it seemed she might revel to any extent if she would only remain abroad. There was no objection, it appeared, if she would do so, that she should indulge in 650 any liberties she pleased—that she should have that sort of unlimited toleration which was offered to her many years ago, upon certain conditions. But having determined to return to England, that ship which was so ready to carry Her Majesty away from England was refused to convey her home. She was alleged to have been guilty four years ago of the offence charged upon her in the present bill, and yet no proceeding was instituted or menaced against her until she thought proper to come home. Until then, it was not alleged or insinuated that it was necessary for the dignity of the Crown, and the honour of the nation, to take any measure against Her Majesty. Not a word, not a rumour, not a breath, indeed, was ever heard of any such measure or pretence, until Her Majesty came home. Her Majesty might, it appeared, act as she pleased among foreigners, who envied and hated England; she might exhibit any spectacle she desired to their jealous eyes, without interfering with the dignity of the Crown and the honour of the nation; but the moment she set her foot on English soil that dignity and honour called for her prosecution and punishment. I am aware that propositions were made to her majesty, if she would agree to certain terms, and that even up to the twelfth hour, the prospect of compromise was held out. These propositions were, however, accompanied with a threat, the publication of which gave, it seems, very great offence. But how was Her Majesty treated throughout the whole of this case, and how were the long-suffering people of this country treated also? She would have been permitted to enjoy the rank which it was now alleged she had forfeited, while she was to have an increased pension, with full licence to pursue what the present bill called "adulterous intercourse," if she would only continue on the Continent, and abstain from visiting England. So that if she was as criminal as her accusers alleged, she was to be allowed a larger salary for the more extended enjoyment of that criminality; if she would only be reconciled to a foreign residence, no charge whatever was to be brought against her of any injury to the dignity of the Crown and the honour of the nation. These pretences or phantoms were, indeed, only raised upon Her Majesty's arrival in this country. This review of the conduct of the authors of the present bill must serve, I think, suffi- 651 ciently to illustrate their character, and I appeal to your lordships, as men of sagacity and sound sense, as men of just principles and generous views, but above all, as men of honour, whether such a measure should be allowed to proceed farther. Let me beg your lordships to retrace your steps by stopping the progress of a bill, the principle and purpose of which are so utterly exceptionable. It is the character of wisdom to abandon error the moment it is discovered, and the sooner any erroneous course is given up the better. I hope and trust, then, that your lordships will not be induced, for the gratification of any man, to prosecute this or any other measure upon idle pretences, and at the hazard of absolute ruin, and that by rejecting such a proposition you will act as becomes your duty, consult the salvation of the country, as well as the real and substantial honour of the Crown.
The Lord Chancellor, as soon as Mr. Brougham had retired from the bar, said, that the House, which admitted but two counsel to be heard, would hear the other counsel now.
Mr. Denman, at that late hour of the day, when the understood period for the termination of business had arrived, after an anxious attendance, and in his present state of health, trusted that their lordships would extend to him their indulgence by granting him time till to-morrow.
The Earl of Liverpoolwas roost ready to comply with the request of the learned counsel, and suggested the propriety of an adjournment.
The Lord Chancelloradded, that the House would proceed to-morrow, and that only two counsel would be heard for or against the bill.